                                                                             FILED
                  IN THE COURT OF APPEALS OF TENNESSEE                      March 24, 1999

                                                                          Cecil Crowson, Jr.
                                    AT KNOXVILLE                          Appellate C ourt
                                                                              Clerk




SANDY LYNN BURRELL,                          ) C/A NO. 03A01-9809-CV-00291
                                             )
       Plaintiff/Counter-Defendant           ) BRAD LEY C IRCUIT
       Appellant                             )
                                             ) HON . JOH N B. H AGL ER, JR .,
v.                                           ) JUDGE
                                             )
MARK ALLEN BURRELL,                          )
                                             ) AFFIRMED AS
       Defendant/Counter-Plaintiff           ) MODIFIED AND
       Appellee.                             ) REMANDED




M. DREW R OBINSON, BA TES & ROB INSON, P.A., Cleveland, for
Defendant/Counter-Plaintiff/Appellee.


JES BE ARD , Chattano oga, for P laintiff/Cou nter-Defe ndant/Ap pellant.




                                       O P I N IO N


                                                           Franks, J.

               In this child custody dispute between the parents, the Trial Judge

changed the custody from the mother to the father jointly with the paternal

grandparents. The Judge directed that the children were not to be left alone with the

father’s girlfriend, and the children were not to spend the night with the father if the

father and the girlfriend were staying together in the same household. The mother was

granted vis itation and o rdered to pa y child suppo rt.
               Our review in child custody cases is de novo upon the record of the trial

court, accompanied by a presumption of correctness of the trial court’s finding, unless

the prepon derance o f the evide nce is otherw ise. T.R.A .P. Rule 13 (d).; Hass v.

Knighton, 676 S.W.2d 5 54 (Tenn. 1984 ). Custody and visitation arrangem ents are

“customarily left to the trial court’s discretion.” Sherrod v . Wix, 849 S.W.2d 780, 784

(Tenn. App. 1992). Therefore, appellate courts generally “give great weight to the

decision of the Trial Judge who saw and heard the parties testify.” Rubin v. Kirshner,

948 S.W .2d 742, 74 6 (Tenn. A pp. 1997 ); see also Dailey v. Dailey, 635 S.W.2d 391,

395 (Tenn. A pp. 1981).

               The mother argues that it was error to award joint custody to the paternal

grandparents, because that relief was not sought in the father’s petition. It is error for

a trial court to grant relief not sought in the plea dings, and in determining whether a

judgment is beyond the scope of the pleadings, the pleadings are to be given a liberal

constru ction w ith all reas onable intendm ents in f avor of uphold ing the ju dgme nt.

Brown v. Brown, 281 S.W.2d 492, 497 (Tenn. 1955); John J. Heirigs Constr. Co. v.

Exide, 709 S.W.2d 604, 607 (Tenn. App. 1986). The error may be remedied by

modifying the judgment of the trial court to conform with the relief requested in the

pleadin gs. See Fidelity-Phenix Fire Ins. Co. v. Jackson, 181 Tenn. 453, 462-463, 181

S.W.2 d 625, 6 29 (19 44).

               The father’s petition only requested that he be awarded custody of the

child ren. T he m othe r had no notice that c usto dy might b e aw arde d to a third party,

thus sh e could not be e xpecte d to off er proo f on the approp riatenes s of tha t possib ility.

Accord ingly, the portion o f the judgm ent award ing joint custo dy to the grand parents is

outside the s cope of th e pleading s and is reve rsed. How ever, the gra nt of custod y to

the father can be upheld, if there has been a material change in circumstances.

               Before re aching the dispositive issu e of custod y, it is appropriate to

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consider th e issues raised as to the adm issibility of eviden ce and pro cedure. A t trial,

the Trial Jud ge permitted the child’s co unselor to tes tify as to what th e child had told

the cou nselor w hich rela ted to ab use. Th is testimo ny was h earsay. See Tenn.R.Evid.

803(c). The father argues that the Trial Court properly allowed in the hearsay

testimony of the child because the statement about m arijuana use in the mothe r’s

home pertains to allegations of abuse and neglect, and he relies on Rule 803(25). The

Rule provides:

                Tenn. R. Evid. 803(25) provides for the following exception to the
                hearsay rule:

                Children’s Sta tements. Unless the circumstances indicate lack of
                trustworthin ess, statemen ts about abu se or neglec t made by a ch ild
                alleged to be the victim of physical, sexual, or psychological abuse or
                neglect, offered in a civil action concerning issues of dependency and
                neglect pursuant to T.C .A. § 37-1-102(b)(10 ), issues concerning severe
                child abuse pursuant to T.C.A. § 37-1-102(b)(19), or issues concerning
                termina tion of p arental r ights pu rsuant to T.C.A . § 37-1 -147(d ).

The Ru le is limited to civ il actions con cerning issu es of dep endency an d neglect,

severe child abuse, or term ination of p arental rights. T he statutes cited in the Rule

deal with placing children in protective custody. The Rule does not encompass a

custody proc eeding, un less parental c ustody is being terminated o r limited by the state

because of neglect or severe child abuse.1 While the Trial Court admitted these

hearsay statements, the error is harmless because the Trial Court did not consider that

testimony in its decision. The Court expressly stated about the marijuana use, “I make

no finding about that whatsoever because I consider those hearsay statements. And I

do not hold that against the mother or any other party.” The Court further said, “the



    1

        As this Court has stated “the rule is limited to specific proceedings, namely dependency and
neglect, severe child abuse, and termination of parental rights, and does not encompass the issue of
custody. We are disinclined to expand the rule beyond that established by the legislature.” Beckner
v. Zimmer, No. 03A01-9602-DR-00060, 1996 LEXIS 682, *5 (Tenn. App. 1996).



                                                 3
testimony of th e guidanc e counse lor established that the party’s son was em otionally

disturbe d by the re lationsh ip betw een the parents and by h is inability to see his f ather.

That was the only thing in her testimony that was really relevant.”

               Next, it is charged that the Trial Court erred in denying the mother the

opportunity to review the notes of a witness to assist her counsel in cross-examination

of that witness.

               The counselor who testified had brought her notes with her, and the

Trial Judge allowed the mother’s counsel to examine the notes, but did not allow the

mother to examine the notes during the trial. The mother argues that the notes were of

the counselor’s session with the son, and that the mother may have been able to make

sense of the notes and therefore could assist her counsel in framing questions for

cross-examination. The mother unquestionably could have had access to these notes

during pre-trial discovery. She was aware that the witness had been counseling the

son, and co uld be a w itness at trial. Ho wever, the re was no pre-trial discov ery of this

witness. The provision in the Rules of Ev idence which allow s for limited discovery

during trial is T enn. R. Ev id. 612, wh ich provide s: “If a witne ss uses a w riting while

testifying to refresh memory for the purpose of testifying, an adverse party is entitled

to inspect it, to cross-examine the witness thereon, and to introduce in evidence those

portions which relate to the testimony of the witness.” This rule would allow an

adverse p arty, not just the party’s c ounsel, to ex amine suc h a docum ent, but the ru le

does not a pply to these circ umstance s. The Ru le applies w hen a w riting is used to

refresh a witness’s recollection w hile that witness is testifying. The advisory

comments to the rule state, “Only if a witness’s memory requires refreshing should a

writing be used by the witness. The direct examiner should lay a foundation for

necessity, show the witness the writing, tak e back the writing, and ask the w itness to

testify from refreshed memory.” That did not occur in this case. The notes were not

                                               4
used to refresh the cou nselor’s recollection. She had h er notes with her, but they were

not used during her testimony. She testified that she had used the notes to prepare a

report. Her testimony was about the report, and the mother did have a copy of the

report. W e find n o error in the Tria l judges action.

               Next, the mother insists the Trial Judge erred in refusing to consider

eviden ce of th e husb and’s p hysical ab use du ring the ir marria ge.

               It is clear from the Judge’s comment that the violence of the father

toward the mother was a factor the court considered in the original custody

determination, but the issue in the m odification proceeding was whethe r there were

changed circumstances, and not a retrial of the divorce case. There was no evidence

offered that the father had abused the children or any other person following the

divorce, but the evidence reveals that the mother entered into another abusive

marriage and that she exposed the children to a variety of people with criminal

backgrounds.

               In a modification proceeding, the Court does not need to repeat the

comparative fitness analysis. Instead, it must find a “material change of

circumstances that is compelling enough to warrant the dramatic remedy of changed

custody.” Muss elman v. Acuff , 826 S.W.2d 920, 922 (Tenn. App. 1991); “Changed

circumstances” include s “any material change of c ircumstances affecting the welfare

of the child, including new factors or changed conditions which could not be

anticipa ted by the custod y order.”Blair v. Badenhope, 940 S.W.2d 575, 576 (Tenn.

App. 1996). The primary consideration in both the original custody award and in a

modif ication o f the cu stody aw ard is to d o wha t is in the b est intere sts of the child.

Nicho ls v. Nich ols, 792 S.W.2d 7 13, 716 (Tenn. 19 90);        Woodard v. Woodard , 783

S.W.2d 1 88, 190 (T enn. Ap p., 1989). T he father o ffered ev idence on factors set fo rth

in T.C.A. § 36-6-106(8)-(9), which are:

                                                5
              (8) Evidence of physical or emotional abuse to the child, to the
              other parent or to any other person; and

              (9) The character and behavior of any other person who resides in or
              frequents the home of a parent and such person’s interactions with the
              child.

The Trial Judge concluded the evidence was compelling enough to warrant a change

of custod y, and we co nclude the evidence does not p reponde rate against h is

determination. T.R.A.P. Rule 13(d). In this regard the Trial Court observed:

              It’s also very clear to the Court th at the moth er allowed an incredib ly
              dangerous group of people to go in and out of her house. This is a
              comp letely una ccepta ble env ironme nt. It’s po or judg ment o n her pa rt.
              It shows no insight whatsoever. I mean, it was a list of just every kind
              of crime you could think of that would be harmful to children that was
              associa ted with some o f the pe ople co ming th rough your hom e.

              I could accept that maybe on - - in the case of this person or that person
              you might not have known everything. But I think you knew a great
              deal about some of these people. I find that any denial that you did not
              know about their conduct was just not believable. I just have never seen
              that many people with those kinds of records going through a house.

              The Trial Court found material changes in circumstances due to the

mother’s a ssocation, an d further fo und those circumstan ces placed the children in

danger of physical and emotional harm. We concur in these findings.

              While the Trial Court awarded custody to the father, it also provided that

the children were no t to be left alon e with K athy Adam s until an app ropriate

investigation was completed and the matter revisited, and further the children were not

stay the night with the father when he and Adams were staying together in the same

househo ld. We up hold that po rtion of the d ecree aw arding cus tody of the ch ildren to

the father, w ith the same limitations plac ed on that c ustody by the Tria l Court.

              We affirm the judgment of the Trial Court in part, as modified, and

remand with the c ost o f the appeal assessed o ne-h alf to each party.




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                              __________________________
                              Herschel P. Franks, J.


CONCUR:




___________________________
Houston M. Godd ard, P.J.




___________________________
Charles D. Susano, Jr., J.




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