                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                     April 6, 2005 Session

                  JULIE DUFF PETTY v. RANDY NEAL PETTY

                     Appeal from the Chancery Court for Loudon County
                      No. 10271    Frank V. Williams, III, Chancellor



                    No. E2004-01421-COA-R3-CV - FILED MAY 19, 2005


In this divorce case, Mother was declared to be the primary residential parent and Father’s overnight
co-parenting time was required to be exercised at his parents’ home with them present. This
restriction was prompted by presentation of evidence that Father had viewed computer internet sites
exhibiting material of a sexual nature and had placed a personal advertisement on an internet site in
an apparent effort to attract sexual partners. Father appeals. Absent proof that Father's actions
presented any risk of harm to his children, we modify the judgment of the trial court and the
parenting plan to delete the requirement that Father’s overnight visitation be supervised by his
parents at their home. We further modify the parenting plan to the extent that it does not require
mutual decision-making.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed as
                              Modified; Cause Remanded

SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and D.
MICHAEL SWINEY , J., joined.

Vivian Lea Crandall, Oak Ridge, Tennessee, for the Appellant, Randy Neal Petty.

Larry Clayton Vaughan, Knoxville, Tennessee, for the Appellee, Julie Duff Petty.

                                            OPINION

        This appeal arises out of a divorce case filed by the appellee, Julie Duff Petty, ( “Mother”)
against the appellant, Randy Neal Petty, (“Father”). At the time of the divorce, the parties had two
minor children, Victoria Jean Petty, born September 3, 1995, and Wesley Ray Petty, born May 21,
1999. The parties agreed that Mother would be primary residential custodian of the children and that
it would be left to the trial court to determine Father’s visitation schedule with the children under
a Permanent Parenting Plan.
        The case was tried on August 5, 2003, and, after hearing testimony of the parties and
argument of counsel, the trial court entered its judgment granting the parties a divorce. Among other
things, the judgment provides that “[Father] shall have standard co-parenting time with the minor
children; however, any overnight co-parenting time shall be exercised at [Father’s] parents’ residence
with [Father’s] parents there. The co-parenting time of [Father] and [Mother] shall be codified in
a PERMANENT PARENTING PLAN to be filed herein.”

        By order entered October 30, 2003, the trial court approved a Permanent Parenting Plan. In
accord with the parties’ prior agreement, the Plan provides that Mother shall have primary residential
custody of their two minor children. Inter alia, the Plan further provides that “[t]he Court has
expressed concerns re: Father’s penchant for pornography,” that sole decision-making is decreed to
Mother and “[m]utual decision-making and designation of a dispute resolution process other than
Court action shall NOT be required because . . . Father has engaged in . . . [a] A penchant towards
pornography” and that, pursuant to Tenn. Code Ann. § 36-6-406(b), “Father’s residential time with
the children shall be LIMITED because that parent has engaged in . . . [a] penchant towards
pornography.” (Emphasis in original.) The Plan further provides that “Father’s overnight co-
parenting time shall be restricted and limited to being observed at his parents’ residence.”

        The sole issue presented in this appeal, as restated, is whether the trial court erred in
decreeing that Father’s overnight co-parenting time with the children shall require the supervision
of his parents and in decreeing that Mother shall have sole decision making authority with respect
to the parties’ two minor children to Father’s exclusion.

        In a non-jury case such as this one, we review the record de novo with a presumption of
correctness as to the trial court’s determination of facts and we must honor those findings unless
there is evidence which preponderates to the contrary. Tenn. R. App. P. 13(d); Union Carbide v.
Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). When a trial court has seen and heard witnesses,
especially where issues of credibility and weight of oral testimony are involved, considerable
deference must be accorded to the trial court’s factual findings. Seals v. England/Corsair Upholstery
Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999). The trial court’s conclusions of law are accorded
no presumption of correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996);
Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993).

         Although in her brief Mother apparently contends that the trial court’s conclusion that
Father’s visitation should be restricted and that he should be excluded from the decision making
process with respect to his children was prompted by the trial court’s consideration of a multitude
of factors, the record before us indicates that the court actually based its conclusion solely upon its
finding that Father has a “penchant for pornography.” That this was the sole basis for the trial
court’s decision with respect to the contested elements of its decree is not subject to reasonable
dispute given the above language quoted from the Permanent Parenting Plan and the following
statements of the court at trial:




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                  I’m going to modify the standard visitation a little bit, given some of the
         facts in the case. It’s going to be essentially the standard visitation with alternate
         weekends, some extended time in the summer, but I’m going to provide that the
         overnight be exercised in the presence of the paternal grandparents. He’s to have
         overnight visitation, but it’s going to be at the grandparent’s home.

                 And that’s simply because I think that I’ve heard enough - - and let me say
         that I’m excluding the testimony of the wife with regard to the material that she
         says she received over the telephone. And had I known when counsel was
         offering that that they had no corroboration for it, I would not have allowed it in,
         because it was clearly being introduced for the purpose of proving the truth of the
         matter stated rather than simply expressing concerns as to why the father should
         not be allowed standard visitation.

                  But there’s enough other material with regard to the visits to the
         pornographic sites and things of that sort that cause me to have concern to want
         to take sort of a gradual approach to this thing. My interest is to restore this father
         to all of the relationships that fathers and mothers typically have in a divorce.

                 And divorce is always bad. There’s nothing good ever comes out of a
         divorce. It may not be as bad as the present situation, I don’t know. But in any
         event, the goal is to reach that relationship that parents typically have in these
         types of situations. But what I’m going to do is take a little while and let’s see if
         the father can at some point convince me that his visits to these sites have come
         to an end.

                 I think my common sense tells me that these things can be addictive and
         progressive in nature rather than something that are usually controlled, so I’m
         going to take a wait-and-see attitude about it. Otherwise, the visitations are to be
         essentially standard . . . .”

        In short, the trial court concludes that Father has a “penchant for pornography” and that this
warrants the court’s entry of a parenting plan which requires that Father’s visitation be supervised
and allows for Father’s exclusion from decisions regarding his children. Given our independent
determination that the evidence does not otherwise support the trial court’s decree as to visitation
and decision-making, we are compelled to determine whether these grounds stated by the trial court
are sufficient to support its imposition of restrictions.

        Tenn. Code Ann. § 36-6-401(a) pertains to parenting plans and provides that in proceedings
regarding child visitation “the best interests of the child shall be the standard by which the court
determines and allocates the parties’ parental responsibilities.” Further, Tenn. Code Ann. § 36-6-
402(3) defines “permanent parenting plan” as “a written plan for the parenting and best interests of
the child . . . .” With respect to matters of child visitation and consistent with the legislature’s focus


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upon the best interests of the child, the Tennessee Supreme Court stated as follows in Eldridge v.
Eldridge, 42 S.W.3d 82, 85, (Tenn. 2001):

                 In reviewing the trial court’s visitation order for an abuse of discretion, the
         child’s welfare is given “paramount consideration,” and “the right of the
         noncustodial parent to reasonable visitation is clearly favored.” Nevertheless, the
         noncustodial parent’s visitation “may be limited, or eliminated, if there is definite
         evidence that to permit . . . the right would jeopardize the child in either a physical
         or moral sense.” (citations omitted)

        Tenn. Code Ann. § 36-6-402(5) defines a “residential schedule” as “the schedule of when
the child is in each parent’s physical care.” Tenn. Code Ann. § 36-6-406 sets forth those factors
which allow a court to incorporate restrictions in a parenting plan as to a parent’s residential time
with his or her child and otherwise:

            (a) The permanent parenting plan and the mechanism for approval of the
         permanent parenting plan shall not utilize dispute resolution, and a parent’s
         residential time as provided in the permanent parenting plan or temporary
         parenting plan shall be limited if it is determined by the court, based upon a prior
         order or other reliable evidence, that a parent has engaged in any of the following
         conduct:
             (1) Willful abandonment that continues for an extended period of time or
         substantial refusal to perform parenting responsibilities; or
            (2) Physical or sexual abuse or a pattern of emotional abuse of the parent, child
         or of another person living with that child as defined in § 36-3-601.
          (b) The parent’s residential time with the child shall be limited if it is determined
         by the court, based upon a prior order or other reliable evidence, that the parent
         resides with a person who has engaged in physical or sexual abuse or a pattern of
         emotional abuse of the parent, child or of another person living with that child as
         defined in § 36-3-601.
          (c) If a parent has been convicted as an adult of a sexual offense under § 39-15-
         302, title 39, chapter 17, part 10, or §§ 39-13-501 - 39-13-511, or has been found
         to be a sexual offender under title 39, chapter 13, part 7, the court shall restrain the
         parent from contact with a child that would otherwise be allowed under this part.
         If a parent resides with an adult who has been convicted, or with a juvenile who
         has been adjudicated guilty of a sexual offense under § 39-15-302, title 39, chapter
         17, part 10, or §§ 39-13-501 - 39-13-511, or who has been found to be a sexual
         offender under title 39, chapter 13, part 7, the court shall restrain that parent from
         contact with the child unless the contact occurs outside the adult’s or juvenile’s
         presence and sufficient provisions are established to protect the child.
          (d) A parent’s involvement or conduct may have an adverse effect on the child’s
         best interest, and the court may preclude or limit any provisions of a parenting
         plan, if any of the following limiting factors are found to exist after a hearing:


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            (1) A parent’s neglect or substantial nonperformance of parenting
         responsibilities;
            (2) An emotional or physical impairment which interferes with the parent’s
         performance of parenting responsibilities as defined in § 36-6-402;
            (3) An impairment resulting from drug, alcohol, or other substance abuse
         that interferes with the performance of parenting responsibilities;
            (4) The absence or substantial impairment of emotional ties between the
         parent and the child;
            (5) The abusive use of conflict by the parent which creates the danger of
         damage to the child’s psychological development;
            (6) A parent has withheld from the other parent access to the child for a
         protracted period without good cause;
            (7) A parent’s criminal convictions as they relate to such parent’s ability to
         parent or to the welfare of the child; or
            (8) Such other factors or conduct as the court expressly finds adverse to the
         best interests of the child.

         We must assume that the trial court’s decision to place limitations upon Father’s visitation
is based solely upon its determination, pursuant to subsection (d)(8) of the foregoing statute, that
Father’s “penchant for pornography” constitutes conduct which is adverse to the best interests of the
child. The record does not indicate that the trial court restricted Father’s visitation based upon any
of the other factors listed in this statute, nor do we find proof that any of these factors were present
in this case.

        With respect to the trial court’s ruling that Father need not be included when decisions are
made regarding the parties’ children, we note the following statutory guidelines. Tenn. Code Ann.
§ 36-6-407(b)(1) provides that a “court shall order sole decision-making to one (1) parent when it
finds that ... [a] limitation on the other parent’s decision-making authority is mandated by § 36-6-
406." As we have noted, the trial court states in the parenting plan that the exclusion of Father from
the decision making process is warranted by the same finding that prompted visitation restrictions -
Father’s “penchant for pornography.” Accordingly, we must assume that the court excluded Father
from decision making under authority of § 36-6-407(b)(1).

        Evidence was presented in this case that, during the course of the parties’ marriage, Father
communicated with a woman via the internet by e-mail and that these communications were of a
sexual nature. Additional evidence was presented that Father placed a descriptive profile of himself
on a computer website designated SexyAds.Com. which lists Father’s “[i]nterests” as “[a] discreet
relationship”, “[c]asual sex” and states that he “seeks” “[w]omen” and “couples.” Further evidence
shows that Father has in the past visited adult web sites of a sexual nature for entertainment
purposes. Father does not deny any of these actions, although he asserts that he did not place the
profile on SexyAds.Com in order “to meet anyone or to do anything like that . . . I wondered what
kind of responses are out there, crazy people sending stuff and pictures and things like that.”



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        While clearly Father’s time could have been better spent in activities other than those
described, no proof has been presented in this case that any of the activities ascribed to Father has
affected his relationship with his children or that his children have been, or will be, exposed to any
material which has been designated “pornographic.” In this regard, Father testified as follows:


         Q. Did you ever have your children around when you would be on the Internet
         looking at any adult site?

         A. Never. I know [Mother] indicated that I would be up late at night doing that,
         and that’s exactly right. I would do it late at night when she would go to sleep.
         She knew I was doing it. She would go to sleep and when the kids were sleep, on
         my own private time in my own solitude.

         ....

         Q. Okay. Mr. Petty, have you ever done anything improper around your children?

         A. Not to my knowledge. I mean, as a parent you hope that you do the right thing
         with your kids and you support them and you love them and you play with them.
         Certainly it’s hard to do everything right. I know for a fact that I have never
         subjected my children to pornography in any way. And I know for a fact that I
         have never had sexual conduct, affections with anyone else, I’ve never had a
         person of the opposite sex around my children and displayed any affection
         whatsoever.

      Consistent with this testimony of Father, Mother’s testimony indicates that no activity
engaged in by Father has ever exposed their children to a risk of harm:

         Q. Being totally straightforward and honest with the Court, as far as you know,
         Mr. Petty’s never done anything inappropriate to your children as far as you know,
         has he, ma’am?

         A. No.

         It appears from the record that, to whatever extent Father engages in the activities objected
to, he does so outside of the presence of his children and there is no proof that his children are ever
exposed to any of these activities. Nor is there proof that any of these activities affects Father’s
relationship with his children in any way whatsoever. In Parker v. Parker, 986 S.W.2d 557,563
(Tenn. 1999), the Tennessee Supreme Court acknowledged that “sexual indiscretion does not, by
itself, disqualify a parent from being awarded custody, but it may be a relevant factor if it involves
the neglect of the child.” See also, Lockmiller v. Lockmiller, No. E2002-02586-COA–R3-CV, 2003
WL 23094418, at *5, 2003 Tenn. App. LEXIS 953, at *14 (Tenn. Ct. App. E.S., filed Dec. 30, 2004).


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Although the case before us involves child visitation rather than child custody, the same principle
controls and the record offers no proof that Father has neglected the parties’ children because of
sexual indiscretion. Additionally, no expert proof was submitted by Mother to support the trial
court’s statement that the activities engaged in by Father “can be addictive and progressive in nature
rather than something that are usually controlled” and we do not find this to be a proper matter for
judicial notice. Tenn. R. Evid. 201(b) only allows a court to take judicial notice of adjudicative facts
“either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned.” We disagree that “the addictive and progressive nature” of activities of the sort
engaged in by Father in this case is a matter of fact which meets either of these criteria.

        While we have no doubt that the trial court’s rulings at issue were well-intentioned, we are
constrained by our construction of the applicable law and our stated findings to respectfully disagree
with such rulings. Accordingly, we decree the following modifications. The judgment of divorce
is modified by deletion of the following language appearing at paragraph 3 of such judgment:
“however, any overnight co-parenting time shall be exercised at Defendant’s parents’ residence with
Defendant’s parents there.” Further, the Permanent Parenting Plan entered on October 30, 2003, is
modified as follows:
        1) All restrictions which limit Father’s overnight co-parenting time with his children by
requiring that such co-parenting time take place only at the residence of Father’s parents in their
presence are removed.
        2) Mother shall not have sole decision making authority with regard to the parties’ children
and major decisions, as designated by the plan, shall be the joint decisions of both parents.
        3) Dispute resolution shall be by mediation.

       The cause is remanded for collection of costs. Costs of appeal are adjudged against the
appellee, Julie Duff Petty, for which execution may issue.




                                               _________________________________________
                                               SHARON G. LEE JUDGE




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