                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON


ANDREI M. MIHUT,                    )


             Plaintiff/Appellee,
                                    )
                                    )                 FILED
                                    ) Shelby Chancery No. D29487-1 R.D.
                                    )                December 28, 1999
VS.                                 ) Appeal No. W1998-00601-COA-R3-CV
                                    )                Cecil Crowson, Jr.
MARIA G. MIHUT,                     )               Appellate Court Clerk
                                    )
                                    )
             Defendant/Appellant.   )


          APPEAL FROM THE CHANCERY COURT OF SHELBY COUNTY
                       AT MEMPHIS, TENNESSEE
                THE HONORABLE WALTER L. EVANS, JUDGE




JEFFREY JONES
Memphis, Tennessee
Attorney for Appellant



T. TARRY BEASLEY, II
Memphis, Tennessee
Attorney for Appellee




AFFIRMED




                                                     ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

HOLLY KIRBY LILLARD, J.
         Maria G. Mihut (“Mrs. Mihut”) has appealed from the trial court’s determination

regarding child custody during a divorce proceeding between Mrs. Mihut and Andrei M.

Mihut (“Mr. Mihut”). Based upon the following, we affirm the decision of the trial court.



                                      Facts and Procedural History



         This divorce and child custody action was originally commenced on May 5, 1998,

by the filing of a complaint for divorce by Mr. Mihut. After a hearing, the trial court granted

Mr. Mihut temporary custody of the children. On October 27, 1998, the court granted Mr.

Mihut a final divorce decree and awarded him permanent custody of the children. Mrs.

Mihut was ordered to pay child support and was granted liberal visitation rights. Mrs. Mihut

appeals based on the following facts.



         Mr. and Mrs. Mihut were married in Santa Ana, California, on November 14, 1989.

They had two minor children, Jeffrey, born December 29, 1989, and Andrea Marie, born

January 9, 1996.1 During the course of the Mihut’s marriage, the family relocated to Shelby

County, Tennessee. At the time this cause of action arose, Mrs. Mihut was employed full-

time. Mr. Mihut worked at home trying to establish a new business and taking care of the

children.



         The Mihuts began experiencing marital problems in 1997. Mrs. Mihut did not offer

an explanation for these problems. However, according to Mr. Mihut, these problems

resulted from Mrs. Mihut’s alcohol and drug use and her alleged involvement in a lesbian

relationship. The couple sought marital counseling that was ultimately unsuccessful.



         As a result of the rapidly deteriorating relationship, Mr. Mihut petitioned for and was

granted a restraining order preventing either party from removing the children from the area

on May 4, 1998. Subsequently, Mr. Mihut filed a complaint for divorce in the Chancery

Court. In his complaint, Mr. Mihut alleged irreconcilable differences and inappropriate

         1
         At the time of the trial co urt pr oce eding s, Je ffrey w as ag e eigh t and And rea w as tw o and a half
years old.

                                                          2
marital conduct by Mrs. Mihut as grounds for divorce. An amended complaint by Mr. Mihut

sought custody of the two children. Mrs. Mihut did not counterclaim for divorce, but she

did seek custody of the children in her answer.



        A temporary custody hearing was held before Chancellor Neal Small on July 28,

1998. At this hearing, Mr. Mihut presented six live witnesses and one witness via

deposition to testify on his behalf.2        Mr. Mihut testified regarding Mrs. Mihut’s use of

alcohol and drugs. Specifically, Mr. Mihut claimed that Mrs. Mihut drank regularly and

sometimes to excess in the presence of the children. Mr. Mihut testified that Mrs. Mihut

drove while intoxicated and at times did so with Andrea, the Mihut’s daughter, in the car.

In addition, a Shelby County deputy testified that a search of Mrs. Mihut’s car by police

revealed a package containing marijuana.



        Mr. Mihut also testified about his relationship with the children and Mrs. Mihut’s

alleged carelessness and apathy regarding the children. According to Mr. Mihut, he was

the children’s principal care-giver. He claimed that both his son and daughter relied upon

him for everyday necessities such as food, clean clothes, and transportation. Mr. Mihut

also claimed that Mrs. Mihut did not spend time with the children and was careless when

she was with them. Specifically, Mr. Mihut alleged that Mrs. Mihut left a plugged-in iron on

the bed and floor of a bedroom, resulting in scorched bedding and carpet on two separate

occasions.



        Several other witnesses testified about Mr. Mihut’s relationship with the children.

The essence of this testimony was to show that Mr. Mihut had a very loving and close

relationship with his children, especially Andrea.          In addition, several of the witnesses

stated that Mr. Mihut was a good parent and was best qualified to take care of the children.

Although most of the witnesses knew and had been friends with both parties, no witness

recommended that Mrs. Mihut be given custody.




        2
        Mr. Mihut’s witnesses included business associates, family friends, and the husband of one of
Mrs. Mihut’s cousins. The deposition of Mr. Mihut’s private investigator was also considered.

                                                   3
      Mrs. Mihut testified regarding Mr. Mihut’s allegations and her relationship with the

children. Mrs. Mihut denied she abused alcohol. She also testified that the reason she did

not spend much time with the children was because they were always with Mr. Mihut. Mrs.

Mihut claimed that the witnesses who testified on behalf of Mr. Mihut did not know her well

enough to make a recommendation.          In addition, Mrs. Mihut said that Andrea was

responsible for the iron burns on the bed and floor. No other witnesses testified on behalf

of Mrs. Mihut.



       After hearing the testimony of the parties and witnesses, the court granted Mr. Mihut

temporary custody of the children on July 28, 1998. Pursuant to the custody order, Mrs.

Mihut was given permission to remain in the marital home pending the divorce. A hearing

regarding the divorce and final custody determination was set for September 9, 1998. Due

to a continuance the hearing was not held until October 12, 1998. The events between

the temporary custody hearing and the final custody hearing are at issue on this appeal.



       On the Monday after the temporary custody ruling, Mr. Mihut and the children

moved out of the marital home and into a hotel room. According to Mr. Mihut, the move

was prompted by Mrs. Mihut’s erratic behavior and the atmosphere it created. For

example, Mrs. Mihut apparently threatened Mr. Mihut with a knife on two occasions, once

in the presence of Andrea. Mr. Mihut and the children continued to reside in the hotel

pending the divorce hearing.



       During this period, Mrs. Mihut successfully sought the court’s permission to have the

children evaluated by a counsellor. As a result, the children were seen by Dr. Susan

Ackerman Ross, a psychologist. Dr. Ross, whose testimony was taken by deposition on

October 8, 1998, stated that she had two sessions with the children, for 45 minutes at each

session. Dr. Ross stated that both children looked healthy, but that Jeffrey has some

emotional problems and exhibited aggressive behavior. In addition, Dr. Ross’s secretary

observed Jeffrey take his fist and repeatedly punch his sister in the vaginal area and

separate her legs and stick his face into her vaginal area. Dr. Ross did not make a



                                             4
recommendation regarding custody but did recommend that Jeffrey receive counseling.



       The divorce and final custody hearing was held on October 12, 1998, before

Chancellor Walter Evans. 3 The divorce was uncontested, so the primary issue regarded

custody of the children. The court reviewed the testimony from the temporary custody

hearing, as well as hearing further testimony by both Mr. and Mrs. Mihut, a witness for Mrs.

Mihut, a witness for Mr. Mihut, and the depositional testimony of Dr. Ross.



       In addition to his previous allegations, Mr. Mihut testified about Mrs. Mihut’s failure

to maintain the house and yard.                   Mr. Mihut presented photographs detailing the

deterioration of the family home that occurred after he moved out.                          The photographs

revealed piles of garbage bags in the yard, some of which had been torn open and

scattered by the family dog. The photos also showed stains on the carpet, a roach, and a

generally unkept house.



       Mr. Mihut also testified that Mrs. Mihut exhibited inappropriate behavior in front of

the children. Specifically, Mr. Mihut alleged that Mrs. Mihut was involved in an extramarital

relationship with a lesbian (“Olga”). According to Mr. Mihut, Mrs. Mihut had sexually explicit

telephone conversations with Olga in the presence of the children. In addition, Mrs. Mihut

had homoerotic literature in the car she used to transport the children. Mr. Mihut also

alleged that during marital counseling sessions, Mrs. Mihut admitted to the occasional use

of marijuana.



       Mrs. Mihut denied Mr. Mihut’s allegations of excessive drinking, marijuana

possession or use, explicit sexual talk, and homosexual literature around the children. In

addition, Mrs. Mihut claimed that the condition of the house was a result of Mr. Mihut’s

removal of cleaning supplies and the cancellation of the garbage service. Mrs. Mihut

testified that Mr. Mihut was forcing the children to sleep with him in the same bed at night.

Mrs. Mihut also presented the deposition testimony of Dr. Ross in regard to Jeffrey’s


       3
           Chan cellor Eva ns ass ume d the ben ch on S eptem ber 1, 19 98, and h eard all m atters ther eafter.

                                                         5
behavior.



       After considering all of the testimony, the trial court granted both a divorce and

custody of the children to Mr. Mihut, with liberal visitation to Mrs. Mihut. The court

specifically disregarded the allegations of Mrs. Mihut’s drug and alcohol abuse and alleged

lesbian relationship in making the custody determination. The court based its determination

on the close relationship between Mr. Mihut and the children and the fact that he had

devoted more time and effort to their upbringing. Thereafter, Mrs. Mihut filed a Notice of

Appeal.



       On appeal, Mrs. Mihut asserts two issues. First, that the trial court erred by failing

to make a referral sua sponte of potential allegations of sexual abuse concerning the

children to the Juvenile Court pursuant to Tenn. Code Ann. § 37-1-605 and Tenn. Code

Ann. § 37-1-403. In addition, Mrs. Mihut asserts that the trial court erred in failing to delay

or hold in abeyance any determination of final custody pending investigation of allegations

of abuse.



                                          Analysis



       In the trial court, the primary factor for determining child custody is the best interest

of the children. Gaskill v. Gaskill, 936 S.W.2d 626 (Tenn. App. 1996); See Tenn. Code.

Ann. § 36-6-106. Child custody cases are reviewed pursuant to Rule 13 of the Tennessee

Rules of Appellate Procedure. Hass. v, Knighton, 676 S.W.2d 554, 554-555 (Tenn. 1984).

Accordingly, the finding of facts by the trial court is de novo, with a presumption of the

correctness. This presumption of correctness can be overcome only if a preponderance

of the evidence indicates otherwise. See TENN . R. APP . P. 13(d). Therefore, for Mrs.

Mihut to prevail on appeal, she must show that sexual abuse of the children was indicated

by a preponderance of the evidence.



                      I. Tenn. Code Ann. §37-1-605 and §37-1-403



                                               6
        Mrs. Mihut’s first issue on appeal is based on two sections of the Tennessee Code

Annotated; § 37-1-605 and § 37-1-403. The substance of these code sections is to require

any person, including the judge of any court, to report potential sexual abuse of a child to

the Juvenile Court.4 Our analysis indicates that application of these sections were not

triggered by the evidence presented to the trial court.



        In reviewing the evidence, we find it appropriate to note that Mrs. Mihut did not raise

the issue of potential sexual abuse at either the temporary custody hearing or the

permanent custody hearing. Instead, she asserts on appeal that it should have been

obvious to the trial court that a referral to Juvenile Court was appropriate. We do not agree

with Mrs. Mihut’s assertions for the following reasons.



            Mrs. Mihut argues that a fair and unbiased reading of the testimony of Dr. Ross

compels the conclusion that Jeremy’s acts were potentially of a sexually abusive nature.

However, in her characterization of Jeremy’s behavior, Dr. Ross stated, “I’m not saying that

he’s [Jeremy] sexually abusing her [Andrea].” Dr. Ross never suggested that further

examination and investigation of any possible sexual abuse was mandated under the

circumstances. Dr. Ross did recommend that Jeremy receive counseling, but explained

that many children exhibit inappropriate behavior in the midst of a divorce. Additionally, the

alleged abuse by one sibling toward the other, occurred in Dr. Ross’ office while the

children were under Mrs. Mihut’s control.



        The only other evidence that Mrs. Mihut can point to is the allegation that Mr. Mihut

shared a bed with his children while living in the hotel. This allegation, even if relevant,

was disproved by the children during their sessions with Dr. Ross.


        4
           Tenn . Code A nn. § 37- 1-605 p rovides in p ertinent pa rt:
         (a) Any person, including, but not limited to, any: (5) Judge of any court of the state...who knows
or has reasonable cause to suspect that a child has been sexually abused; shall report such knowledge or
suspicion to the departmen t in the manner prescribed in subs ection (b).
         (b)(2) If a law enforcement official or judge becomes aware of known or suspected child sexual
abuse ...such info rma tion shall be r eported ...
         Tenn. Code. Ann. § 37-1-403 provides the same protection, but includes reporting of suspected
brutality, abuse, or neglect, in addition to child sexual abuse.



                                                     7
       The evidence presented by Mrs. Mihut during the temporary and permanent custody

hearings does not even hint at the possibility of sexual abuse of the children. Mrs. Mihut

relies solely on her own unfounded accusations and the acting-out behavior of Jeffrey

under stressful circumstances. There was no basis for a referral to Juvenile Court on the

evidence presented in the trial court. Therefore, sections 37-1-605 and 37-1-404 are not

applicable. In addition, we find it appropriate to note that allegations of sexual abuse of a

child are very serious and damaging for not only the child, but all parties involved, and

should never be used as a last-ditch effort to win custody.



       In dealing with an issue of this nature, the court cannot always recognize when

abuse occurs even if presented with evidence or allegations of such. However, in a case

such as this one, where there is no evidence suggesting abuse, and no allegations of

abuse, the court cannot act as clairvoyant. Without an evidentiary foundation, the court

cannot predict that sometime, someday, in some manner, abuse may occur.



                          II. Abeyance of Custody Proceeding



       Mrs. Mihut’s second issue on appeal is whether the trial court erred by failing to

postpone the determination of final custody until an appropriate investigation into the

allegations of child sexual abuse could be completed. Because there were no allegations

or any apparent evidence of abuse before the trial court, we find that this issue is meritless.

The trial court was not in error in proceeding with the custody determination.



                                        Conclusion



       Based on the foregoing, the judgment of the trial court is hereby affirmed. Costs

on appeal are taxed to Mrs. Mihut, for which execution may issue if necessary.




                                              8
                           HIGHERS, J.



CONCUR:




CRAWFORD, P.J., W.S.




LILLARD, J.




                       9
