                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                   APRIL 22, 2008 Session

                        JOEY CONNER v. CARMEN CONNER

                    Appeal from the Chancery Court for Haywood County
                         No. 11718 George R. Ellis, Chancellor



                     No. W2007-01711-COA-R3-CV - Filed May 29, 2008


This appeal arises from a post-divorce proceeding wherein the minor child’s mother, contending that
there had been a material change in circumstances, sought a change of custody. After several days
of hearings, the trial court transferred custody from the father to the mother. We find that the trial
court applied an incorrect legal standard and also find that the final hearing below was prematurely
terminated. We therefore vacate and remand for further proceedings.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated and
                                       Remanded.

WALTER C. KURTZ, SR. J., delivered the opinion of the court, in which ALAN E. HIGHERS, P.J., W.S.,
and HOLLY M. KIRBY , J., joined.

Jennifer Twyman King, Jackson, Tennessee, for the appellant, Joey Conner.

Felicia Corbin Johnson, Memphis, Tennessee, for the appellee, Carmen Conner.


                                             OPINION

        This appeal involves the custody of a minor child. The parties were granted a divorce in
1998, and custody of the child was awarded to the father. In July 2007, the mother sought to transfer
custody from the father to herself. The trial court granted the mother’s request. The father appeals
arguing that the trial court committed both procedural and substantive errors that require reversal.
More specifically, he contends that the trial court impermissibly changed custody without finding
that there had been a material change in circumstances and additionally that the trial court ruled
prematurely without allowing him an opportunity to present all of his proof. For the reasons stated
herein, we vacate the decision of the trial court and remand for further proceedings.
                                                I. Background

       The parties were divorced on September 10, 1998. They had one minor child, who was
eleven years old at the time of the hearings that are at issue in this appeal. The final decree of
divorce granted primary residential custody of the child to the father and allowed the mother
weekend visitation.

       The relationship between the parties was not smooth following their divorce as they
continued to spar in court over custody, visitation, and enforcement of child support obligations.
Meanwhile, the father remarried. The present round of litigation was initiated by the father in late
2004 when he sought to increase the mother’s child support obligations but decrease her visitation.
The mother countered by alleging a change in circumstances and seeking to transfer custody. The
mother argued, among other things, that the father and his new wife had used excessive corporal
punishment in disciplining the child.

        Proof on the petitions filed by the parties was heard by the trial court on four separate days:
August 22, 2006; November 27, 2006; May 8, 2007; and May 9, 2007. The court ruled orally on
May 9, 2007. For reasons not apparent in the record, the decision of the court was not memorialized
in an order until July 20, 2007. In pertinent part, that order states:

        1. The Court is of the opinion that Respondent/Counter-Petitioner has not
        demonstrated a material change in circumstances to modify [] the existing Permanent
        Parenting Plan dated January 8, 2002; but the Court must consider the fact that the
        minor child . . . will turn twelve years old on July 2, 2007[,] and the Court must
        consider the child’s preference to live with Respondent/Counter-Petitioner.1

        2. When the Court considers that child’s preference to primarily reside with her
        mother, the Court is of the opinion that custody should be modified and
        Respondent/Counter-Petitioner shall be the primary residential parent and
        Petitioner/Counter-Respondent shall be the alternative residential parent, and shall
        have the first and third weekends of each month, and residential time with the child
        during Christmas vacation, spring break, summer vacation[,] and holidays as
        specifically set forth in the Amended Permanent Parenting Plan Order filed
        simultaneously with this Order.

        3. The Amended Permanent Parenting Plan shall begin when school ends for the
        2006-2007 school year.

       During the four days of testimony heard by the court below there was conflicting evidence
adduced regarding the allegedly excessive disciplining of the child by the father. Likewise, there
was conflicting proof from expert witnesses as to the parenting skills of the respective parties and


        1
           At the hearing, the trial court commented that the child would turn twelve in July and in Tennessee “when
a child gets that age, the courts generally follow what the child desires.”

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the effect the actions of the parents were having on the welfare and well-being of the child. The
mother testified as to her change in circumstances: a move to Murfreesboro, Tennessee and an
improved employment situation.

       After the court changed custody of the child, the father did not seek a stay of the trial court’s
order. The child now lives with her mother in Murfreesboro and visits with her father, who
continues to live in Brownsville, Tennessee just as he had prior to the order changing custody.

        This is an admittedly brief overview of the proof presented, but it suffices for our purposes
since, for the reasons set out below, this case must be returned to the trial court for additional
proceedings.

                                      II. Standard of Review

       “When the trial court has set forth its factual findings in the record, we will presume the
correctness of these findings so long as the evidence does not preponderate against them.” Bogan
v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). We, however, do not accord the trial court’s legal
conclusions that same presumption. See, e.g., Curtis v. Hill, 215 S.W.3d 836, 839 (Tenn. Ct. App.
2006). The appellate court’s review of these legal conclusions is conducted “under a pure de novo
standard of review.” Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706,
710 (Tenn. 2001).

                        III. Applicable Standard for Changing Custody

        Decisions regarding child custody and visitation are among the most important matters
addressed by our courts. Steen v. Steen, 61 S.W.3d 324, 327 (Tenn. Ct. App. 2001). Tennessee
courts are statutorily authorized to modify custody arrangements as necessitated by intervening
changes in circumstances. Tenn. Code Ann. § 36-6-101(a)(1). In altering an already existing
custody arrangement, the legislature has determined as follows:

       If the issue before the court is a modification of the court’s prior decree pertaining
       to custody, the petitioner must prove by a preponderance of the evidence a material
       change in circumstance. A material change of circumstance does not require a
       showing of a substantial risk of harm to the child. A material change of circumstance
       may include, but is not limited to, failures to adhere to the parenting plan or an order
       of custody and visitation or circumstances that make the parenting plan no longer in
       the best interest of the child.

Tenn. Code Ann. § 36-6-101(a)(2)(B).


       In order to change an existing custody arrangement, the trial court must make two separate
determinations. Boyer v. Heimermann, 238 S.W.3d 249, 255-60 (Tenn. Ct. App. 2007). First, the
court must determine that there has been a material change in circumstances. Second, the court must
conclude that changing the existing custody arrangement is in the child’s best interests. Id. at 259-60;

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see Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002); Krupp v. Cunningham-Grogan, No.
M2005-01098-COA-R3-CV, 2006 WL 2505037, at *6 (Tenn. Ct. App. Aug. 29, 2006). Only if the
trial court makes the threshold determination that there has been a material change in circumstances
does it then proceed to consider the child’s best interests. Boyer, 238 S.W.3d at 259.

        As reflected in its decision, the trial court was of the opinion that the custodial preference of
the eleven year old—who was soon to be twelve—was sufficient to warrant a change in custody.
See Tenn. Code Ann. § 36-6-106(a)(7)(A) (custody determination may include reasonable preference
of child age twelve or older). This Court has previously held that the stated preference of a child,
standing alone, does not constitute a material change in circumstances. Mulkey v. Mulkey, No.
E2004-00590-COA-R3-CV, 2004 WL 2412610, at *5 (Tenn. Ct. App. Oct. 28, 2004). However,
the child’s preference, coupled with other circumstances, may amount to a material change in
circumstances.

                                              IV. Procedural Issues

        In his appeal, the father also contends that the trial court erred significantly when it halted
the proof at the close of the mother’s direct examination, did not hear from the father, and then
summarily rendered its decision. The record supports the father’s contention as to the points that
the mother was not cross-examined and that the father did not testify. At the close of the mother’s
direct examination, the trial court stated: “Okay. Let me see the attorneys back in the jury room.”
The transcript here reflects the following:

                    (In camera meeting with the court and attorneys for the parties.).2

The judge then returned to the courtroom, aborted the hearing, and immediately announced his
ruling, which was later reflected in the written order quoted above. As the mother points out, no
objection was made by the father to the procedure undertaken by the trial court. We are at a
disadvantage because no record was made of the in camera meeting. The importance of counsel
ensuring that a court reporter is present for all aspects of proceedings, including during in camera
conferences, has been previously noted. See Rutherford v. Rutherford, 971 S.W.2d 955, 956 (Tenn.
Ct. App. 1997) (holding that in chambers interviews with children must be held in the presence of
court reporter); see also State v. Schlegel, W2000-02597-CCA-R3-CD, 2002 WL 1558640, at *5
(Tenn. Crim. App. Jan. 28, 2002) (criticizing fact that discussion between trial court and counsel was
not recorded); cf. State v. Hammons, 737 S.W.2d 549, 551 (Tenn. Crim. App. 1987) (condemning
unrecorded bench conferences).

       This Court simply does not know what happened during the trial judge’s conference with
counsel. After the conference, the judge—without objection—rendered judgment. It would be
apparent to any judge that, unless the father and his counsel had agreed, he could not change custody
without first allowing for cross-examination of the mother and hearing testimony from the father.
As a prior panel of this Court has held: “[There is nothing] more important than the custody of


        2
            The court reporter was not invited to attend the conference.

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children after a divorce. Such a determination requires a full, fair, and complete hearing.”3 Price
v. Price, No. E1999-00102-COA-R10-CV, 2000 WL 704596, at *10 (Tenn. Ct. App. May 31, 2000).
Perhaps the trial court was so sure that the preference of the child would control the case that it
thought no further proof was necessary. The trial court did not explain why it terminated the
hearing.
                                          V. Discussion

        On appeal, the mother all but concedes that the trial court’s findings do not support a change
in custody, but she contends that the record supports finding a material change in circumstances and
thus that we should nevertheless affirm. She points to evidence of disciplinary abuse by the father,
evidence that the child was fearful of her father, evidence of the father’s problems in managing
anger, and finally evidence of her own positive change in circumstances.

        The Court cannot affirm, however, as the hearing below was aborted and the proof
incomplete. The Court is cognizant that no objection was made to the termination of the hearing,
but in considering such important rights as those of cross-examination and testifying for oneself, this
Court would have to be shown some affirmative indication in the record that those rights were
waived before we could overlook their absence.4

        The father, on the other hand, has requested that this Court reverse the trial court and
reinstate the original permanent parenting plan, which had designated him as the primary residential
parent. In light of the aborted hearing, we also decline to reverse the trial court’s order. We believe
that the decision below was premature in that the trial court had not yet heard the father’s testimony
and the cross-examination of the mother. Consequently, the trial court’s order must be vacated and
the case remanded for a further hearing wherein the trial court will consider all of the evidence and
apply the legal standard on material change of circumstances set forth in Boyer. In light of the fact
that the best interests of the child should dictate the resolution of any case, the child’s physical
custody shall remain with the mother pending the reconvening of the uncompleted hearing. The trial
court should conduct the additional proceedings prior to August 1, 2008. The trial court is directed
to issue its custody decision before the beginning of school in August 2008.


                                                   VI. Conclusion




         3
          It hardly needs citation that, in the adjudication of important interests, the right to conduct cross examination
along with the right to present evidence is fundamental to due process. See 3 Ronald D. Rotunda & John E. Nowak,
Treatise on Constitutional Law: Substance and Procedure § 17.8(a) (4th ed. 2008).
         4
            While not objecting often constitutes a waiver, appellate courts relax this rule when fundamental
constitutional rights are involved, there is no opportunity to object, or the courtroom’s atmosphere makes objections
difficult. See Neil P. Cohen, Sarah Y. Sheppeard & Donald F. Paine, Tennessee Law of Evidence § 1.03[4][b] (5th ed.
2005).

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        The decision below is vacated, and this case is remanded for further proceedings and
disposition as indicated above. Costs of this appeal are taxed to the appellee, Ms. Carmen Conner,
and her surety for which execution may issue if necessary.




                                             _________________________________
                                             WALTER C. KURTZ, SENIOR JUDGE




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