                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                    July 12, 2001 Session


                 KELLY MAZELLE MEAGHER STILLWELL v.
                        THOMAS H. STILLWELL

                      Appeal from the Circuit Court for Bradley County
                          No. V-99-734     John B. Hagler, Judge

                                     FILED JULY 30, 2001

                                 No. E2001-00245-COA-R3-CV


Thomas Stillwell (“Father”) appeals the Trial Court’s order which he claims improperly modified
the original decree establishing child visitation. Father claims this was in error because there was
no showing of a material change in circumstances. Father also appeals the Trial Court’s order which
prohibited him from possessing a firearm when he is exercising visitation with his son. We affirm
the Trial Court’s determination on visitation, as modified, and vacate the prohibition on Father’s
possessing a firearm in the presence of his child.


             Tenn. R. App. P. 3 Appeal As of Right; Judgment of the Circuit
        Court Affirmed in Part as Modified, and Vacated in Part; Case Remanded.


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


B. Prince Miller, Cleveland, Tennessee for the Appellant Thomas H. Stillwell.


D. Mitchell Bryant, Cleveland, Tennessee for the Appellee Kelly Mazelle Meagher Stillwell.
                                             OPINION

                                            Background

               After Kelly Mazelle Meagher Stillwell (“Mother”) filed for divorce, the parties
entered into a Marital Dissolution Agreement (“MDA”) which divided the marital estate and
provided for the care and custody of the parties’ minor son who was born on November 1, 1997.
The portion of the MDA relevant to this appeal pertains to custody and visitation, and provides as
follows:

               CUSTODY: The parties stipulate that each is a loving, caring,
               dutiful parent and capable of providing for the care, maintenance and
               support of their minor child. The parties agree to a shared, joint
               custody of the minor child with the primary physical custody of the
               child to remain with [Mother].

                       The parties have worked with one another, around the hours
               of [Father’s] dental practice, in order to ensure that he is able to spend
               quality time with the child and the parties will continue to do so, in
               the future.

                                                ****

               VISITATION: For purposes of complying with the statute, [Father]
               shall have minimum visitation rights to be established as follows:

               a.      Every other weekend from Friday at 6:00 p.m. until Sunday
                       at 6:00 p.m. . . .

The MDA also set forth the visitation schedule for the various holidays and summer vacations, etc.
The Trial Court entered a Final Decree of Divorce and incorporated the MDA into its final decree.

                Approximately six months after the final decree was entered, Mother filed a petition
to modify claiming that, notwithstanding the minimum visitation rights set forth in the MDA, she
had allowed Father additional visitation with their minor child. Mother claimed that Father was now
insisting on this additional visitation. Mother alleged that when she asked Father to limit this
additional visitation, he would harass and berate her. Mother also asserted that Father was carrying
a loaded weapon at all times and she was fearful that the child may find the weapon. Mother
requested the Trial Court restrain Father from coming about her home on a daily basis and to impose
restrictions on Father’s having weapons around the child. Father then filed a Petition for Contempt
claiming, among other things, that Mother had interfered with his visitation rights.




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               For a few months after the parties were divorced, they essentially lived next door to
each other and shared a yard. In the evenings, Father would play in the yard with his son, and, for
the most part, they had daily contact. Several months after the divorce, Father moved a short
distance away and no longer lived next to Mother. At the hearing on the motions, Father testified
that he and Mother agreed that he could exercise visitation on Tuesday, Wednesday, and Thursday
evenings. Father asked the Trial Court to enforce this informal post divorce decree agreement.

                 Mother testified that after she and Father separated, she was not working and her
schedule allowed her to be flexible with Father so as to allow him daily contact with their son. After
the divorce, Mother secured employment and her schedule was not as flexible. Mother testified that
the first time she told Father that it would be inconvenient for him to come to her house to see their
son, he demanded to see his son and showed up at her house anyway. Mother claims Father then
took the child without her permission. Mother testified that she first allowed Father to exercise more
visitation than provided for in the final decree, but when she attempted to cut back on this extra
visitation, he would “bully” her and threaten to take custody of the child. Mother stated that she
never denied Father any of the required minimum visitation set forth in the final decree. Mother
admitted that after they were separated, Father would see their son almost every day, but at that time
they essentially shared the same back yard.

               Mother testified that Father is a diabetic and sometimes he is not “all the way in
control of himself” when his sugar level is low. It is for this reason she requested that Father be
prohibited from carrying a weapon when the child is present. The only specific incident she testified
to occurred when she was five months pregnant and Father had an insulin reaction and began
“fumbling” with a gun.

                Father testified that he has not had an insulin reaction requiring medical attention
since the parties separated. Father testified he keeps all of his guns securely locked up except for
the one he carries on his person. When this gun is not on his person, it is put up where the child
cannot get to it but where Father can retrieve it if necessary. Father admitted that when he was
dating Mother, he had an insulin reaction while driving which resulted in an automobile accident.
With regard to visitation with his son, Father stated that notwithstanding the minimum visitation set
forth in the final decree, he and Mother had an agreement for expanded visitation.

                The Trial Court concluded that there was a legitimate safety issue in light of Father’s
diabetes and ordered “that there shall be no guns, of any sort, around the child while he is visiting
with [Father] . . . and that any guns in his home when the child is there, shall be locked up and kept
out of his control.” As to vistation, the Trial Court found no material change in circumstances and
also noted that any agreement between the parties was no longer working. In addition to the
minimum visitation set forth in the MDA, the Trial Court allowed Father visitation on alternating
Wednesdays for four hours. Husband appeals both determinations.




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                                             Discussion

                A review of findings of fact by a trial court is de novo upon the record of the trial
court, accompanied by a presumption of correctness, unless the preponderance of the evidence is
otherwise. Tenn. R. App. P. 13(d); Brooks v. Brooks, 992 S.W.2d 403, 404 (Tenn. 1999). Review
of questions of law is de novo, without a presumption of correctness. See Nelson v. Wal-Mart Stores,
Inc., 8 S.W.3d 625, 628 (Tenn. 1999). Once visitation decisions are made and implemented, they
are res judicata upon the facts in existence or reasonably foreseeable when the decision is made.
Young v. Smith, 193 Tenn. 480, 485, 246 S.W.2d 93, 95 (1952); Solima v. Solima, 7 S.W.3d 30, 32
(Tenn. Ct. App. 1998). Visitation decisions may be altered if intervening, material changes in
circumstances require modification. Solima, 7 S.W.3d at 32.

                The MDA, as incorporated into the final decree, provides that: “The parties have
worked with one another, around the hours of [Father’s] dental practice, in order to ensure that he
is able to spend quality time with the child and the parties will continue to do so, in the future.”
According to Father, he and Mother were working with each other and had agreed he could exercise
visitation on Tuesday, Wednesday, and Thursday evenings. Thus, Father contends that this informal
agreement was modified by the Trial Court when he was allowed visitation only on every other
Wednesday, as opposed to what had been agreed to by the parties. Since the Trial Court found that
there had been no material change in circumstances, Father argues that this agreed-to visitation could
not be altered.

               The language in the MDA which Father relies upon certainly lacks any precision with
regard to exactly what amount of visitation was contemplated. The minimum visitation set forth
later in the MDA does not lack this precision. This conclusion is reinforced by the following oral
pronouncement made by the Trial Court following the hearing:

               [The MDA, which was incorporated into the final decree,] indicates
               that the mother is the primary custodian. There’s been no material
               change of circumstances whatsoever that would change that. And I
               cannot try to figure out what kind of arrangements might have been
               going on during the period of separation or what might have been the
               status quo at the time of the divorce unless it’s spelled out specifically
               in the agreement and the court order.

                We do not believe the language in the MDA relied upon by Father allows us to
conclude that it entitles him to visitation on Tuesday, Wednesday, and Thursday evenings. If that
is what the parties actually intended, then the section of the MDA titled “Visitation” would be
rendered ineffective, at least in part, because visitation on those three evenings is not mentioned.
We conclude that the visitation which Father actually was granted is that contained in the section of
the MDA titled “Visitation”. While parents certainly are encouraged to work with each other to
allow the non-custodial parent greater visitation than what is set forth in a court order, this does not
entitle the parent receiving additional visitation to have such an informal agreement enforced by a


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court, absent a showing of a material change in circumstances and that it is in the child’s best
interests.

                The Trial Court found no material change of circumstances relating to visitation after
the entry of the final decree which incoroprated the MDA. The evidence does not preponderate
against Trial Court’s finding of no material change of circumstances. Therefore, we conclude that
the section of the MDA titled “Visitation” sets forth the visitation to which Father is entitled. The
Trial Court’s resolution of the motions modified Father’s visitation originally established in the final
decree in two ways: First, the MDA granted Father visitation for two non-consecutive weeks during
the summer, with each week consisting of seven days. The subsequent order makes no mention of
these two weeks of visitation. While it is unclear if this was merely an oversight on the part of the
Trial Court, we modify the order to reinstate this two week visitation period to Father as originally
provided in the MDA. The second change was the granting to Father of visitation on every other
Wednesday for a four hour period. Mother does not appeal this additional visitation, and, therefore,
we affirm this change.

               The second issue on appeal is the propriety of the Trial Court’s prohibiting Father
from carrying a weapon in the presence of the child and ordering that all guns be locked up when
Father is exercising visitation. Father argues that the Trial Court’s order violates his right to bear
arms under both the Second Amendment to the United States Constitution as well as Article I,
Section 26 of the Tennessee Constitution.

               We are guided in the resolution of this issue by the decision of our Supreme Court
in Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993). In Hawk, the Supreme Court held that the
Grandparent Visitation Act was unconstitutional as applied to the facts of that case. In so doing, the
Court stated that in light of the constitutional right to privacy, “we believe that when no substantial
harm threatens a child’s welfare, the state lacks a sufficiently compelling justification for the
infringement on the fundamental right of parents to raise their children as they see fit.” Id. at 577.
The Court went on to add that absent a substantial danger of harm to the child, “a court may not
constitutionally impose its own subjective notions of the ‘best interests of the child’ when an intact,
nuclear family with fit, married parents is involved.” Id. at 579.

                We believe the parents’ constitutional right of privacy as found by our Supreme Court
in Hawk is applicable here where we have two fit parents, even if those parents are now divorced.
Additionally, we believe the constitutional rights under the Second Amendment of the United States
Constitution as well as Article I, Section 26 of the Tennessee Constitution are worthy of the same
protection as is the constitutional right to privacy discussed in Hawk. Accordingly, the Trial Court
could not restrict Father’s otherwise lawful possession of a firearm absent a showing of risk of
substantial harm to the child. The Trial Court made no such finding. While the Trial Court did find
that Mother’s concerns regarding the child and the guns was a legitimate safety issue and concern,
such a finding is not a finding of risk of substantial harm to the child. The testimony about the
incident when Mother was pregnant (which occurred approximately three years before the hearing
took place) as well as the car wreck which happened when the parties were dating is insufficient to


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conclude that Father’s possession of a gun places the child at risk of substantial harm,
notwithstanding Father’s diabetes. This is even more apparent given Father’s testimony that he
keeps all but one of his guns securely locked up, and the remaining gun is kept where the child
cannot get to it. We also note that both of these events relied upon by Mother happened prior to the
divorce and, therefore, provide no evidence of any change of material circumstances concerning this
issue.

                We certainly cannot overemphasize the need for extreme caution with firearms at all
times, especially when children are or may be present. Nevertheless, absent a showing of risk of
substantial harm to the child, we conclude that the portion of the Trial Court’s order restricting
Father’s possession of a firearm in the presence of his child was in error, and vacate that portion of
the Trial Court’s order. Absent a risk of substantial harm to the child, the wisdom of Father’s
decision is not for the Trial Court or this Court to determine. The Trial Court made no finding of
risk of substantial harm, and neither can we based upon the record before us. It is clear, however,
that if Mother can show a risk of substantial harm to the child, the Trial Court can impose
restrictions on Father to eliminate that risk of substantial harm.

                                            Conclusion

               The decision of the Trial Court is affirmed in part as modified, and vacated in part.
This case is remanded to the Trial Court for further proceedings as may be required, if any,
consistent with this Opinion, and for collection of costs below. Costs of appeal are taxed one-half
to the Appellant Thomas Stillwell and his surety, and one-half to the Appellee Kelly Mazelle
Meagher Stillwell.




                                                       ____________________________________
                                                       D. MICHAEL SWINEY




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