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

text:
    In the Matter of Renee Carmon VALLE, d/o/b 6/6/96, Obed Valle, d/o/b 5/31/95, Minor Children.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Feb. 17, 2000.
    Permission to Appeal Denied by Supreme Court Oct. 16, 2000.

      Debra N. Brittenum and Webb A. Brewer, Memphis Area Legal Services, for appellants, Cynthia and Gilberto Valle.
    Garland Erguden, of Memphis, for ap-pellee, Court Appointed Special Advocates.
   W. FRANK CRAWFORD, P.J., W.S.

This is a termination of parental rights case. The parents, Gilberto and Cynthia Valle, appeal the order of the juvenile court terminating their parental rights to Obed Valle and Renee’ Valle. For the reasons hereinafter stated, we reverse the juvenile court order.

Obed was born on May 11, 1995. On June 6, 1995, Obed was found to be dependent and neglected and placed in the custody of the Tennessee Department of Children’s Services (DCS). Renee’ was born on July 6, 1996, and on July 9, 1996, she was placed in DCS custody as a dependent and neglected child. Both children were placed in foster care, and court approved plans were adopted for both with the goal of reunification of the family.

On March 4, 1997, Court Appointed Special Advocate (CASA) was appointed after DSC recommended that the children stay in foster care. On February 20, 1998, CASA filed a petition for termination of parental rights pursuant to T.C.A. § 36-1-113(c) alleging that: (1) the children had been abandoned pursuant to T.C.A. § 36-1 — 113(g)(1) as defined in T.C.A. § 36-1-102; (2) pursuant to T.C.A. §§ 36-1-113(g)(2) and 37-2-403 appellants failed to substantially comply with the plans of care; (3) pursuant to T.C.A. § 36-1-113(g)(3)(A)(I-iii) the children were removed from appellants’ home by court order for a period of six months, and that the conditions that led to removal persist with little likelihood of an early remedy; and (4) that termination was in the best interest of the children.

On April 15, 1998, CASA was granted a default judgment by Judge McDowell when appellants failed to answer calendar call because they were in the hall. Later that day the judgement was set aside. Judge McDowell agreed that an attorney should be appointed to represent Mrs. Valle due to her history of mental illness and that a guardian ad litem was needed to represent the needs of the children. On April 29, 1998, orders were entered appointing an attorney ad litem to protect the lawful rights of Mrs. Valle and a guardian ad litem was appointed for the protection of the children’s rights.

A report and recommendation was filed by both the guardian ad litem and attorney ad litem. The guardian ad litem interviewed Mrs. Valle twice and stated in his report that “[although the mother appears to be a caring mother and wants to have custody of her children, neither she nor her husband seemed to be in a position to take care of the minor children at this time.” The guardian ad litem recommended that the custody remain with DCS with further efforts to assist the Valles in parenting, and that termination of parental rights is premature at this time.

The attorney ad litem stated in her report that “[i]t is not apparent that DCS has made every attempt to work with Mrs. Valle to accomplish reunification of the family.” The attorney ad litem further reported that she does not believe that the decision by DCS to terminate the parental rights of Mrs. Valle is based on factual evidence but rather on the fact that Mrs. Valle was incarcerated, and because she suffers from a mental illness. The attorney ad litem also recommended that the petition for termination of parental rights be dismissed at this time.

The matter was heard on May 28, 1998, by Special Judge George Blancett. Ms. Fannie Lamar, the children’s DCS ease manager, testified on-behalf of CASA.

Ms. Lamar testified that Obed came to the attention of DCS shortly after his birth when the hospital contacted DCS to express concern about releasing him with Mrs. Valle due to her mental condition. Ms. Lamar testified that on June 6, 1995, she filed a petition and a protective order in an effort to bring Obed into state custody. On July 7, 1995, an order was entered finding Obed dependent and neglected and placing Obed in state custody. Ms. Lamar stated that an effort was made through the organization, Home Ties, to keep Obed in Mrs. Valle’s home, but that she was uncooperative and noncompliant with her medication and treatment of her mental illness. According to DCS policy a plan was developed for the care of Obed shortly after he came into state custody. The goal of the original plan was reunification with the family. Ms. Lamar testified that although parents generally participate in developing these plans, the Valles did not take part because DCS did not know where Mrs. Valle was, and Mr. Valle was incarcerated.

According to Ms. Lamar, under the plan Mrs. Valle was to attend parenting classes, maintain her medication, and to maintain contact with the department to facilitate arrangements for visitation. Under the plan Mr. Valle was to attend parenting classes and to indicate to DCS when he would be available for visitation. Obed’s plan was updated sometime around the end of December, 1995 by Ms. Lamar and Mrs. Valle. The update included medical releases from Mrs. Valle and Mr. Valle was referred to Alcoholic’s Anonymous due to excessive drinking. Mr. Valle was also referred to Martin Luther King Center for alcohol treatment, however DCS never received any indication that he had been treated for alcohol abuse.

As to Renee’, Ms. Lamar testified that she came into the custody of the state in much the same way that Obed had come into custody, when the hospital called DSC expressing concern that Mrs. Valle could not care for Renee’. Ms. Lamar filed a petition on July 9, 1996, when Renee’ was three days old, to bring her into state custody. Shortly thereafter an order was entered bringing Renee’ into state custody and ordering Mr. Valle to pay $105.00 monthly child support by income assignment. Mrs. Valle participated in developing the plan for Renee’.

Ms. Lamar further testified that during the three years that the children have been in custody, DCS has not received any reports that Mrs. Valle was under psychiatric care, and that neither Mr. or Mrs. Valle have completed parenting training. Neither parent has contributed monetary child support to either child.

Regarding visitation, Ms. Lamar testified that at all times the Valles’ visits with their children were supervised. DCS initially allowed them a good deal of liberty in scheduling the visits, however, due to hostility between Mr. and Mrs. Valle, they were required to have separate visitations. Over the three year period visitations were sporadic for both parents and at times DCS would not know the location of Mrs. Valle. In a foster care review hearing Mr. Valle’s visits were limited to once a month. In March of 1997, orders were entered directing that Obed and Renee’ stay in foster care with the goal changed to adoption and appointing CASA. Ms. Lamar testified that goals were changed due to circumstances including Mrs. Valle’s history of mental illness, her noncompliance in taking her medication, and both parents’ failure to complete tasks under the plans of care for Obed and Renee’. Ms. Lamar states that she informed Mr. Valle of the goal change and he indicated that he understood and would get a lawyer.

Ms. Lamar further testified that she has observed the Valle family since 1992. She is of the opinion that neither Mr. or Mrs. Valle fulfilled their responsibilities under the plan of care and believes that the conditions that led to the removal of Obed and Renee’ still exist and are unlikely to be remedied. Ms. Lamar states that there where no efforts on the part of DCS to work with Mr. Valle on his language barrier.

At the conclusion of proof the judge asked Mrs. Valle if she would like to testify when he noticed that she was holding up her hand. Mrs. Valle said that she would, and her testimony followed. Mrs. Valle stated that she believed “that her human and civil rights have been violated because — •” Mrs. Valle testified that she is currently being closely monitored by her physician, Dr. Roa, and after being observed will be given a prescription. Mrs. Valle further testified that she had family members that had an interest in the children and have expressed to her that they would be willing to assist her in child care and in providing for the children. Mrs. Valle stated that she was interested in supporting her children and in maintaining a close relationship with them. Mrs. Valle testified that she was willing to attend parenting classes and to see that her medical problems were treated.

The trial court ruled from the bench that the parental rights would be terminated. The order terminating parental rights was entered June 24,1998, and provides in pertinent part:

FINDINGS OF FACT
1. That Obed Valle has been removed from the custody of the Respondents by order of this Court for more than two years, and that Renee’ Valle has been removed from the custody of the Respondents by order of this Court for more than one year.
2. The Respondents have for a period of four (4) consecutive months immediately preceding the filing of this Petition, abandoned said children in that they have failed to visit and willfully failed to support or make reasonable payments toward the support of said children.
3. The respondent, Cynthia Valle, failed to seek and successfully complete a treatment program to address her mental illness issues and stabilize on her medication, failed to complete parenting classes, and failed to maintain contact with the Department of Children’s Services as required in the ratified Permanency Plan.
4. The respondent, Gilberto Valle, faded to maintain contact with the Department of Children’s Services, failed to complete parenting classes, and failed to attend and participate in an Alcoholics Anonymous program as required in the ratified Permanency Plan.
5. Any conclusion of law hereafter recited which should be deemed a finding of fact is found to be true in all respects and is hereby adopted as such.
Based on the foregoing findings of fact, the Court concludes as follows:
CONCLUSIONS OF LAW
1. This Court has jurisdiction over this proceeding pursuant to TCA. §§ 36-1-113(a) and 37-1-104.
2. The Respondents have abandoned the children as defined in TCA § 36 — 1— 102(A).
3. The Respondents have substantially failed to comply with the statement of responsibilities in the ratified Permanency Plan as defined in TCA § 37-2-403.
4. Said children have been removed from the custody of the Respondents by the Court for at least six (6) months and the conditions which led to the removal or other conditions which in all reasonable probability would cause said children to be subject to further abuse or neglect and which, therefore, prevent said children’s return to the Respondents’ care still persist and there is little likelihood that the conditions will be remedied at an early date so that said children can be returned to the Respondents in the near future. Further, the continuation of a relationship with the Respondents, greatly diminishes said children’s chances of early integration into a stable and permanent home.
5. In accordance with TCA § 36-1-113(c)(2), the termination of the Respondents’ parental rights is in the best interest of said children.
6. In accordance with TCA 36-1-113(c)(1), there is clear and convincing evidence to support the termination of the Respondents’ parental rights regarding said children.
7.Any finding of fact which should be deemed a conclusion of law is hereby adopted as such.

The Valle’s have appealed the juvenile court’s ruling and present in their brief the following issues:

I. Whether Article I, § 8 of the Tennessee Constitution precludes non-attorney judges from presiding over termination of parental rights cases.
II. Whether Article VI, § 4 of the Tennessee Constitution requires that the termination of parental rights case be heard by an elected judge.
III. Whether T.C.A. § 17-2-118(f)(2) contravenes Article VI, § 4 of the Tennessee Constitution.
IV. Whether the due process clause of the Fourteenth Amendment to the United States Constitution and Rule 39 of the Tennessee Rules of Juvenile Procedure required the appointment of counsel for appellant Gilberto Valle.
V. Whether due process requires that a translator be provided a non-english speaking parent in a termination of parental rights case.

Since this case was tried by the trial court sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d).

In appellants’ issues I and II they contend that Article I, § 8 and Article VI, § 4 preclude a non-attorney judge from presiding over termination of parental rights cases and that such actions are to be heard by an elected judge. In issue III Appellants contend that T.C.A. §§ 17-2-109(c) and 17-2-118(f)(2), regarding the appointment of special and substitute judges, are unconstitutional. In issues I, II, and III the Appellants raise constitutional issues that were not raised at trial.

Generally, issues not raised at trial may not be raised for the first time on appeal. State Dept. of Human Services v. Defriece, 937 S.W.2d 954, 960 (Tenn.Ct. App.1996) (citing Simpson v. Frontier Community Credit Union, 810 S.W.2d 147, 153 (Tenn.1991); Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn.1983)). See also Chadwell v. Knox County, 980 S.W.2d 378, 384 (Tenn.Ct.App.1998) (appellate court declines to consider a theory relating to the Tennessee Solid Waste Disposal Act, (T.C.A. § 68-211-101), as the theory was not raised at trial); and Presley v.. Hanks, 782 S.W.2d 482, 490 (Tenn.Ct.App.1989) (appellate court declines to construe the term “legal issue”).

In Lawrence v. Stanford, 655 S.W.2d 927 (Tenn.1983), the Court said:

We express no opinion respecting the constitutional validity or invalidity of T.C.A., Sec. 63-1234, and hold that the Court of Appeals erred in considering that issue. It was error for that court to adjudicate the constitutional issue because that question had not been raised at any point in the proceedings in the trial court.
It has long been the general rule that questions not raised in the trial court will not be entertained on appeal and this rule applies to an attempt to make a constitutional attack upon the validity of a statute for the first time on appeal unless the statute involved is so obviously unconstitutional on its face as to obviate the necessity of any discussion. (Citations omitted).

Id, at 929.

The record is silent concerning Judge Blancett’s appointment, and this Court is called upon to guess the source of his appointment. Our Supreme Court noted in Lawrence v. Stanford, supra, “when the validity of [the statute] was not raised in the trial court no opportunity was afforded for the introduction of evidence which might be material and pertinent in considering the validity of the statute.” 655 S.W.2d at 929. Certainly, this situation prevails in this case, and we decline to consider this issue. Since the case is to be remanded, the deficiency can be remedied.

The appellants next raise the issue whether the due process clause of the Fourteenth Amendment to the United States Constitution and Rule 39 of the Tennessee Rules of Juvenile Procedure required the appointment of counsel for appellant Gilberto Valle.

Under the United States Constitution, parents do not have an absolute right to counsel in termination of parental rights proceedings. Lassiter v. Dept. of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). The Lassiter Court, however, recognizing that the requirements of due process vary from case to case, determined that the nature of the proceeding and the interests involved ai-e determinative factors in what due process requires. 101 S.Ct. at 2158. In State ex rel. T.H. by H.H. v. Min, 802 S.W.2d 625 (Tenn.Ct.App.1990), the parents of a minor child filed a complaint and petition for writ of habeas corpus, against the Commissioner of the Department of Human Services, seeking a declaratory judgment that their due process rights were violated by failure of the juvenile court to appoint counsel to represent them at various custody hearings. This Court noted that the issue on appeal is whether the due process provisions of the state and/or federal constitutions require the juvenile court to appoint counsel for the parents in a proceeding in which the parents face the possibility of losing custody of the child. Id. at 625. The Court noted that it is well established “that the parental right to raise one’s children is a fundamental liberty protected by the due process clause of the Fourteenth Amendment.” Id. at 626. The Court further noted that the Lassiter Court and the Circuit Court of Appeals in Davis v. Page, 714 F.2d 512 (5th Cir. 1983) listed several factors to determine whether an indigent parent in a hearing affecting parental rights may be entitled to the assistance of counsel as a matter of due process. The Court stated:

To help assess the risk of an unfair proceeding resulting in an erroneous decision, the courts in Lassiter and Davis have listed several factors that bear on the question. They include: (1) whether expert medical and/or psychiatric testimony is presented at the hearing; (2) whether the parents have had uncommon difficulty in dealing with life and life situations; (3) whether the parents are thrust into a distressing and disorienting situation at the hearing; (4) the difficulty and complexity of the issues and procedures; (5) the possibility of criminal self-incrimination; (6) the educational background of the parents; and (7) the permanency of potential deprivation of the child in question. Lassiter, 101 S.Ct. at 2161-2163; Davis, 714 F.2d at 516-517.

Id. at 627.

Rule 39 of the Tennessee Rules of Juvenile Procedure prescribe the procedures for termination of parental rights cases. Rule 39(f) provides in pertinent part:

(f) Adjudicatory Hearing on Termination
(1) The court shall conduct an adjudicatory hearing to determine the issues raised by the petition and by any answer(s) filed. Notice of the hearing shall be provided in the summons.
(2) At the beginning of the hearing, any party who appears without an attorney shall be informed of the right to an attorney, and in the case of an indigent respondent, the court shall consider the facts and circumstances alleged and make a determination as to whether an attorney should be appointed.

In State, Dept. of Human Services v. Taylor, 1997 WL 122242 (Tenn.Ct.App.), this Court held that the procedures of Rule 39(f)(2) concerning the right to have an attorney, appointed or otherwise, are mandatory. In so holding, the Court said:

Our present Rules of Juvenile Procedure became effective July 1, 1984. Since these rules postdate Lassiter, it would appear that in order to insure that the conditions therein stated are properly considered, the Tennessee Supreme Court and the General Assembly, by the adoption of the Rules of Juvenile Procedure, provide minimum requirements which the trial court must follow when a parent appears at a termination hearing without an attorney.

Id. at *2. From our review of the record, it appears that the mandate of Rule 39 was not met. Although at the April 15, 1998 hearing, the court appointed an attorney ad litem to represent Mrs. Valle because of her mental condition, the record indicates some confusion as to the duties expected of the appointee. It appears that the attorney ad litem did not assume a strict adversary stance but acted more in the nature of a yuardian ad litem. In any event, Mr. Valle was without any representation, and both Mr. and Mrs. Valle should have been accorded the protection of Rule 39. Failure to be provided this protection results in reversible error.

Appellants assert in the last issue that due process required that Mr. Valle be provided an interpreter. Tenn.R.Civ.P. 54.04(3) provides:

(3)The court may appoint an interpreter of its own selection and may fix reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may be taxed ultimately as costs in the discretion of the court.

Tenn.R.Crim.P. 28 provides essentially the same except as to the taxing of costs. In State v. Thien Duc Le, 743 S.W.2d 199 (Tenn.Crim.App.1987), the Court considered the alleged error of the trial court in not appointing a Vietnamese language interpreter. Finding in that case that there was no indication of a language barrier, the Court held that the trial court did not err in failing to appoint an interpreter. However, the Court said:

it is the duty of the court to provide the necessary means for the defendant to understand the nature of the charges against him, the testimony of the witnesses, and to communicate to the court. Failure to do so would be a violation of one’s constitutional right to be heard, to know the nature and cause of the accusation, and to be confronted by the witnesses. (Citations omitted)

Id. at 202.

Generally, the appointment of an interpreter is in the discretion of the court before which a cause is on trial. 88 C.J.S. Trial, § 42, p. 101 (1995).

While we have found no case dealing with the precise issue before us, we generally recognize that the party litigant is entitled to be present in all stages of the actual trial of the case. Warren v. Warren, 731 S.W.2d 908, 909 (Tenn.Ct. App.1985). Thus, a party must be in a position to understand the nature of the case and the testimony of the witnesses. When this question presents itself, the trial court must determine whether an interpreter is necessary, based upon the nature and extent of any alleged disability of the parties. Considering the drastic nature of a termination of parental rights case, it is particularly incumbent upon the trial court to be careful in exercising discretion for the appointment of an interpreter. The record in this case reflects that no inquiry was made concerning the need for an interpreter primarily, we presume, because the Valles did not have counsel acting in their behalf. On remand, the trial court can proceed as required to protect the rights of the parties.

We should also note that the trial court’s ruling was, in part, based on abandonment of the children as defined in T.C.A. § 36-l-102(l)(a). In In re Brittany Swanson, 2 S.W.3d 180 (Tenn.1999), released by the Supreme Court in October 1999, the Court held that the statutory definition of “willfully failed to support” and “willfully failed to make reasonable payments toward the support of the children” are unconstitutional. The Court said:

Since the statutory definitions of “willfully failed to support” and “willfully failed to make reasonable payment toward such child support” in effect create an irrebuttable presumption that the failure to provide monetary support for the four months preceding the petition to terminate parental rights constitutes abandonment, irrespective of whether that failure was intentional, we hold that those definitions are unconstitutional. The statutory definitions simply do not allow for the type of individualized decision-making which must take place when a fundamental constitutional right is at stake. Therefore, they impermissibly infringe upon a parent’s right to the care and custody of his or her children.

Id. at 188. The Court directed that until the definitions were amended by the legislature, the definition in effect under prior law shall be applied. Id. at 189. The Court noted that the definition of “abandoned child” under prior law, as it existed in 1994, included an “element of intent both in failures to visit and failures to support.” Id. at 189 & n. 14 (citing T.C.A. § 36 — 1—102(l)(A)(i) (Supp.1994)).

Accordingly, the order of the trial court is reversed. This case is remanded to the trial court for further proceedings consistent with this opinion. Costs of the appeal are assessed to the appellee, Court Appointed Special Advocates.

HIGHERS and FARMER, JJ„ concur.

      . It is unclear to this Court why the attorney appointed to assist Mrs. Valle was an attorney ad litem, and further why she filed a report, a task usually accomplished by the guardian ad litem in actions concerning parental rights.

      . Ms. Lamar testified that alcohol treatment became one of Mr. Valle’s tasks in the plan because he came in for visitations smelling of alcohol.

      . At this point the record reflects that Mrs. Valle was interrupted by the court, and we are unable to ascertain the specific violation claimed by Mrs. Valle.


source: Caselaw Access Project

author: BEN H. CANTRELL, Presiding Judge, M.S.

license: Public Domain

text:
    Ronald L. DAVIS, Plaintiff/Appellant, v. Warden Flora J. HOLLAND, Associate Warden David Russell, Classification Coordinator Bob Ervin, Job Coordinator Charles D. Szostecki, Warden Ricky Bell, Commissioner Donal Campbell, Assistant Commissioner Charles Bass, and Classification Director Howard Cook, Defendant/Appellee.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    March 29, 2000.
    Permission to Appeal Denied by Supreme Court Sept. 18, 2000.
    Ronald L. Davis, Only, TN, pro se.
    Paul G. Summers, Attorney General & Reporter, Pamela S. Lorch, Assistant Attorney General, Nashville, TN, for appel-lees.
   OPINION

BEN H. CANTRELL, Presiding Judge, M.S.

A prisoner in the custody of the Department of Correction claimed that numerous employees of the Department violated his constitutional rights by refusing to assign him to a position as an inmate legal advis- or. The trial court dismissed his claim for failure to pay the legal costs assessed against him in an earlier case. We affirm.

I.

Ronald L. Davis was incarcerated at the West Tennessee High Security Facility (WTHSF) in Henning, Tennessee where he worked as an inmate legal advisor. He applied for an open position as an inmate legal advisor in the Department of Correction’s Special Needs Facility (SNF) or in its Riverbend Maximum Security Institution (RMSI), both of which are located in Davidson County. Mr. Davis’ request was denied. He was later transferred to the Turney Center Industrial Prison (TCIP) in Only, Tennessee.

On September 27, 1997, Mr. Davis filed a complaint under U.S.C. 42 § 1983 and Tenn. Code.Ann. § 28-3-104 in the Circuit Court of Davidson County. He claimed that he was intentionally overlooked for the legal support positions in the Davidson County institutions in retaliation for his legal activities on behalf of other inmates and himself. Mr. Davis named as defendants the wardens and other officials of SNF and RMSI, as well as the Commissioner, Assistant Commissioner and Classification Director of the Department of Correction.

The State responded by filing a motion to dismiss on December 12, 1997, claiming improper venue, a lack of jurisdiction because of Mr. Davis’ failure to comply with the requirements of Tenn. Code.Ann. § 41-21-801 et seq., and the failure to state a claim upon which relief can be granted. See Tenn.R, Civ.P. 12.02(6). Mr. Davis filed a memorandum in opposition to the State’s motion, and a subsequent motion for the court to grant him a judgment on the pleadings. On August 26,1998 he filed a motion for leave to file a supplemental complaint. On September 28, 1998, he filed a motion for summary judgment on his claims.

In the proposed supplemental complaint, Mr. Davis claimed that he had been transferred to TCIP at the behest of the defendants. He had been confined at TCIP earlier in his sentence, and he had submitted grievances and lawsuits against the institution’s officials at that time. He claimed that he was in fear for his life, because those same officials were now harassing him and threatening him with bodily harm in retaliation for the previous lawsuits. He said that he had received letters containing threats and racial epithets that had been slipped under his cell door.

II. The Court’s First Ruling

The trial court issued its first memorandum and order on the pending motions on November 16, 1998. The court granted Mr. Davis’ motion to supplement his complaint, and declared that Mr. Davis had stated a constitutional claim, but that his pleadings were deficient because of failure to comply with the statutory guidelines that inmates must follow when filing lawsuits.

a. Yenue

Tenn.Code.Ann. § 41-21-803 reads:

Venue. — Except as otherwise provided by law, an action that accrued while the plaintiff inmate was housed in a facility operated by the department shall be brought in the county in which the facility is located.

The defendants argued that the only proper venue for filing this case was in Lauderdale County, where WTHSF is located. Mr. Davis argued that venue was proper in Davidson County, because all the defendants reside there. In deciding that question, the trial court cited the case of Sweatt v. Conley, Court of Appeals No. 01-A-01-9706-CH-00247, 1997 WL 749482, (filed Nashville, December 5, 1997) which dealt with a similar issue of venue.

In that case, Antonio Sweatt, an inmate in the Lake County Regional Facility, brought a U.S.C. 42 § 1983 action in the Davidson County Chancery Court. The defendants filed a motion to dismiss the claim for improper venue, but the trial court overruled the motion. The trial court ultimately dismissed the petition for failure to state a claim upon which relief could be granted.

On appeal, this court found that Mr. Sweatt had stated a cognizable claim under U.S.C. 42 § 1983, but we revisited the question of venue. We noted that Tenn. Code.Ann. § 41-21-803 did not apply, because it was not yet in effect when Antonio Sweatt filed his petition. We reasoned that a claim for violation of civil rights must be considered a transitory action because it can arise anywhere. The general law in regard to transitory actions therefore applied, which is that “the action may be brought in the county where the cause of action arose or in the county where the defendant resides or is found.” Tenn. Code.Ann. § 20-4-101(a).

There was no evidence in the record as to where Mr. Conley and the other defendants resided. We noted that they all worked in Lauderdale or Lake Counties, which are on the western boundary of the state, and we therefore found it reasonable to infer that they did not reside in Davidson County, which is near the center of the state. We accordingly affirmed the dismissal of Mr. Sweatt’s civil rights claim, but held that it should be witho'ut prejudice to his right to refile in Lake County.

In the present case, the trial court found that while the cause of action arose in Lauderdale County, it would consider Mr. Davis’ assertions regarding the residence of the defendants. It therefore ordered Mr. Davis to amend his complaint within 30 days to indicate the actual residence of the defendants, with the complaint to be dismissed if he failed to do so, or if there were no defendants residing in Davidson County.

b. Failure to File Required Documents

The defendants had argued that Mr. Davis’ complaint should be dismissed for lack of jurisdiction, because he had failed to supply the court with documents that the legislature has required be submitted every time an inmate files a complaint accompanied by an affidavit of inability to pay court costs. The required documents are listed in Tenn.Code.Ann. § 41-21-805, and include,

(1) A complete list of every lawsuit or claim previously filed by the inmate, without regard to whether the inmate was incarcerated at the time any claim or action was filed; and
(2) For each claim or action listed in subsection (a):
(A) The operative facts for which relief was sought;
(B) The case name, case number and court in which the suit or claim was filed;
(C) The legal theory on which the relief sought was based;
(D) The identification of each party named in the action; and
(E) The final result of the action, including dismissal as frivolous or malicious under this part or otherwise.
(b) If the affidavit filed under this section states that a previous suit was dismissed as frivolous or malicious, the affidavit must state the date of the final order affirming the dismissal.
(c) The affidavit must be accompanied by a current certified copy of the inmate’s trust account statement.

Again, the trial court gave Mr. Davis 30 days in which to comply with the statute. The court stated that failure to provide any of the information required by Tenn. Code.Ann. § 41-21-805 would result in dismissal of his complaint.

c. The Retaliation Claim

The trial court found that Mr. Davis had presented sufficient proof that he was engaged in a constitutionally protected activity by providing legal assistance to his fellow inmates. Relying on the case of Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969) the court concluded that state officials were precluded from acting in retaliation against him for his role as an inmate legal assistant.

The court then ruled that under the two-pronged test to determine whether a person’s constitutional rights had been violated, the burden had shifted to the defendants to show “whether they would have made the same decisions regarding Davis’ transfer, reclassification and job assignment, if he had not helped other inmates to file lawsuits.” Since the defendants had not yet met that burden, the court denied their motion to dismiss for failure to state a claim.

In the conclusion portion of her order, the trial judge stated “[sjummary judgment is granted as to the constitutional right to job changes, prison transfers, and changes in security classifications, insofar as they do not relate to retaliation.” We quote the somewhat confusing language of the court’s order here because one of Mr. Davis’ arguments on appeal is based upon an erroneous interpretation of her ruling.

III. The Final Order

Mr. Davis filed a motion to alter the memorandum opinion in which he provided the business address of each defendant, a statement of his Inmate Trust Account, and a fist of 29 cases he had filed in the courts of the State of Tennessee. The defendants filed a motion to dismiss, accompanied by the affidavit of a records specialist employed by the Civil Rights and Claims Division of the Office of the Attorney General. She stated that the list of lawsuits submitted by Mr. Davis was not complete, and that her division had thirty open files on lawsuits brought by Mr. Davis, and previously closed files on an additional twenty-four lawsuits.

The trial court issued its final order on March 1, 1999. The court noted that Mr. Davis had not fully complied with its earlier order, and stated that the defendants’ motion to dismiss was well taken. However, the court declared that it would allow Mr. Davis ten days from the date of the entry of its order to file a voluntary non-suit pursuant to Tenn.R.Civ.P. 41.01. If the non-suit was not taken in the time allowed, the motion to dismiss would be granted with prejudice. Instead of filing a non-suit, Mr. Davis appealed to this court.

IV. Issues on Appeal

a. Venue

Since Mr. Davis has not raised the issue of venue on appeal, we need not conclusively address that issue here. However, there was a strong implication in the trial court’s ruling that venue for this case would have been proper in Davidson County if Mr. Davis had supplied it with the residential addresses of the individual defendants. While that may be consistent with the result of Antonio v. Sweatt, supra, we are not sure that case applies here, since it did not consider the effect of Tenn. Code.Ann. § 41-21-803.

b. Unpaid Court Costs

The purpose of subjecting indigent inmates to the filing requirements of Tenn. Code.Ann. § 41-21-805 is to discourage the filing of meritless lawsuits at public expense. To further this aim, the legislature has also enacted Tenn.Code.Ann. § 41-21-807, which directs the court to order any inmate who had filed a claim that was found to be frivolous or malicious to pay the filing fees and court costs for that claim.

The court is authorized to dismiss any claim if an inmate fails to pay filing fees, court costs or any other costs assessed for filing a frivolous or malicious lawsuit. Tenn.Code.Ann. § 41-21-807(h). The statute also provides a mechanism for charging the costs assessed against the inmate’s trust account.

With their motion to dismiss, the defendants filed statements of due and unpaid costs from a small sampling of cases filed by Mr. Davis. The unpaid costs on those cases alone added up to thousands of dollars. The individuals sued included the Governor, a Senior Judge, the Commissioner of Correction, the Attorney General, an Assistant Attorney General, numerous employees of the Department of Correction, and a sporting goods manufacturer. In one case filed in the Fifth Circuit Court of Davidson County, Ronald Davis v. Sohnia Hong and John Knox Walkup, Case No. 97C-2484, the trial court found the action to be both malicious and frivolous.

In his response to the motion to dismiss, Mr. Davis moved the trial court to order the costs in Davis v. Hong deducted from his trust account. The court properly granted the motion. However we do not believe that Mr. Davis’ obligation was fully discharged by the court’s actions. Tenn. Code.Ann. § 41-21-812 reads:

(a) Except as provided by subsection (b), on notice of assessment of any fees, taxes, costs and expenses under this part, a clerk of a court may not accept for filing another claim by the same inmate until such prior fees, taxes, costs and other expenses are paid in full.
(b) A court may allow an inmate who has not paid any costs or expenses assessed against the inmate to file a claim for injunctive relief seeking to enjoin an act or failure to act that creates a substantial threat of irreparable injury or serious physical harm to the inmate.

In view of this statute, it appears to us that the trial court’s order of dismissal was well taken. We also believe that Mr. Davis should not be permitted to file another claim (other than one under Tenn. Code Ann. § 41-21-812(b)) at least until he has finished paying off the costs in Davis v. Hong.

c. The Retaliation Claim

Mr. Davis argues on appeal that the trial court erred in reversing its previous order of summary judgment in his favor. It is clear from his brief that he believed that the trial court granted him summary judgment on his claim of retaliation, subject only to proof on his claim of venue, and on compliance with the requirements of Tenn.Code.Ann. § 41-21-805.

A fair reading of the court’s memorandum and order, however, shows this not to be the case. The court found only that by providing legal assistance to his fellow inmates, Mr. Davis was engaged in an activity that was constitutionally protected. The court’s order never amounted to more than a denial of the defendants’ Tenn. R.Civ.P. 12.02(6) motion to dismiss Mr. Davis retaliation claim, and was not a grant of summary judgment on that claim. Thus Mr. Davis’ argument is groundless, and since the court dismissed the complaint on other grounds, it is also moot.

Y.

The order of the trial court is affirmed. Remand this cause1 to the Circuit Court of Davidson County for further proceedings consistent with this opinion. Tax the costs on appeal to the appellant, Ronald Davis.

KOCH and CAIN, JJ., concur.

      . In Johnson v. Avery, the Supreme Court ruled that the State could not enforce prison regulations barring inmates from furnishing legal assistance to other prisoners, unless the state itself provided some reasonable alternative to assist inmates in the preparation of petitions for post-conviction relief. Thus, the right belongs to the inmate who would otherwise be denied meaningful access to the courts. It does not belong to the individual who seeks the role of helping him.


author: CRAWFORD, P.J., W.S.,

text:
    VICTORIA INSURANCE COMPANY v. Annie HAWKINS, et al.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    April 6, 2000.
    Permission to Appeal Denied by Supreme Court Oct. 2, 2000.

      Roane Waring III, Memphis, for appellant.
    Kendall Reeves, Memphis, for appellees, Annie Hawkins and Arnold Hawkins.
   OPINION

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

delivered the opinion of the court, in which

FARMER, J., and LILLARD, J., joined.

Plaintiff, Victoria Insurance Company, filed this declaratory judgment suit against defendants, Annie Hawkins, Arnold Hawkins, individually and as parents or legal guardians of Terrell Hawkins, Marius Taylor and Tammy Terry to determine coverage under the uninsured motorist provision of a liability insurance policy issued to defendant, Arnold Hawkins, and applicable to defendants, Annie Hawkins and Terrell Hawkins. The Hawkins vehicle collided with a vehicle driven by defendant, Marius Taylor, and owned by defendant, Tammy Terry, after Marius Taylor was shot from another motor vehicle by unknown assailant. From the order of the trial court denying Victoria’s motion for summary judgment and granting judgment to the defendants, Victoria has appealed.

This is a declaratory judgment suit brought by the plaintiff, Victoria Insurance Company, seeking a declaration that it' is not obligated to provide uninsured motorist coverage to the defendants-insureds, Annie Hawkins, Arnold Hawkins, and Terrell Hawkins. Plaintiff appeals the trial court’s order denying its motion for summary judgment and granting judgment for defendants.

The facts are undisputed as stipulated by the parties. Victoria issued a motor vehicle liability insurance policy to Arnold Hawkins for a policy period of April 17, 1996 through April 17, 1997, which included uninsured/underinsured motorist coverage. On June 14, 1996, Arnold Hawkins was driving the insured vehicle westbound in the southern-most traffic lane on the south loop of Interstate 240, near Airways Boulevard in Memphis, Tennessee, and Annie Hawkins and Terrell Hawkins were passengers. At the same time, Marius Taylor was driving eastbound in a 1993 Mizubishi Gallant owned by Tammy Terry on the south loop of Interstate 240 near the Airways Boulevard exit. About the same time, an unknown vehicle was traveling eastbound in the center traffic lane for eastbound traffic in proximity to the Terry vehicle, when a passenger in the unknown vehicle fired gun shots into the Terry vehicle striking the driver, Marius Taylor. As a result of being shot, the Taylor vehicle crossed over the center median area into the westbound traffic lanes where it collided with the Hawkins vehicle. Taylor was killed by the gun shot, and the driver of the unknown vehicle and his passenger have never been identified. There was no policy of motor vehicle insurance providing coverage for Taylor or Terry at the time of the motor vehicle accident on June 14, 1996. Arnold Hawkins, Annie Hawkins, and Terrell Hawkins filed a complaint in the Circuit Court for the Thirtieth Judicial District at Memphis seeking damages allegedly sustained by the collision. The complaint is styled: “Annie Hawkins, Arnold Hawkins, Individually and as Parents and/or Legal Guardians of Terrell Hawkins versus John Doe (1) John Doe (2), Marius Taylor and Tammy Terry.”

Victoria filed the instant suit against defendants for a declaration that it was not obligated to provide uninsured motorist coverage to Annie Hawkins, Arnold Hawkins or Terrell Hawkins pursuant to the terms and provisions of the insurance policy. The trial court denied Victoria’s motion for summary judgment and sua sponte granted judgment to defendants. At the conclusion of the argument on the motion for summary judgment, the court stated:

It was caused by the actions of a third party and to me, again, it does not make any difference whether they’re in a vehicle or standing on the side of the roadway. If they do something to cause a problem to one vehicle that then runs into another vehicle, that’s an automobile accident and I think it is covered under the policy.

Victoria has appealed, and the only issue for review is whether the trial court erred in holding that there is coverage pursuant to the uninsured motorist provisions of the. subject automobile insurance policy.

Questions involving an insurance policy’s coverage and an insurer’s duty to defend require the interpretation of the insurance policy in light of claims asserted against the insured. Standard Fire Ins. Co. v. Chester O’Donley & Assoc., 972 S.W.2d 1 (Tenn.Ct.App.1998). The issues relating to the scope of coverage present questions of law which can be resolved by summary judgment when the relative facts are not in dispute. Id. at 5-6. Summary judgment may be granted only when there are no genuine material factual disputes with regard to the claim or the defenses asserted in the motion, and when the moving- party is entitled to a judgment as a matter of law. Tenn.R.Civ.P. 56.03; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993).

In construing contracts, the words expressing the parties’ intentions should be given the usual, natural and ordinary meaning. Ballard v. North American Life and Cas. Co., 667 S.W.2d 79 (Tenn.Ct.App.1983). Where there is no ambiguity, it is the duty of the court to apply to the words used their ordinary meaning and neither party is to be favored in their construction. Id. at 83. In Ballard, the Court, quoting from Guardian Life Ins. Co. of America v. Richardson, 23 Tenn.App. 194, 129 S.W.2d 1107 (1939), said:

Contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary, and popular sense. The rule of strict construction does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists, nor does it authorize the court to make a new contract for the parties or disregard the evidence (intention) as expressed, or to refine away terms of a contract expressed with sufficient clearness to convey the plain meaning of the parties and embodying requirements, ...

667 S.W.2d at 82.

The pertinent parts of Victoria’s insurance policy are:

PART C UNINSURED MOTORIST COVERAGE INSURING AGREEMENT
A. We will pay compensatory damages which an “insured is legally entitled to recover from the owner or operator of any “uninsured motor vehicle” because of
1.“Bodily injury” sustained by an “insured” and caused by an accident;
2. “Property damage” caused by an accident if the Schedule or Declaration Page indicates that both “bodily injury” and “property damage” Uninsured Motorists Coverage applies.
The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the “uninsured motor vehicle.”
B. “Insured” as used in this endorsement means
1. You or any “family member.”
2. Any other person “occupying” “your covered auto.”
D. “Uninsured motor vehicle” means a land motor vehicle or trailer of any type:
1. To which no bodily injury liability bond or policy applies at the time of the accident.
8. Which is a hit-and-run vehicle whose operator or owner cannot be identified and which hits, or causes an accident resulting in “bodily injury” or “property damage” without hitting:
a. You or any “family member,”
b. A vehicle which you or any “family member” are “occupying,” or
c. “Your covered auto.”
If there is no physical contact with the hit-and-run vehicle the facts of the accident must be proven by clear and convincing evidence. We will only accept competent evidence other than evidence provided by the occupant of:
a. ‘Your covered auto,” if “your covered auto” is involved in the accident.

Victoria asserts that the accident in question did not “arise out of the ownership, maintenance, or use of the motor vehicle.” Appellees assert that the Terry vehicle is an uninsured motor vehicle, and that the accident arose out of the ownership and use of this vehicle. Moreover, the appellees assert that the policy language regarding hit and run vehicles qualifies the unknown vehicle in this case as an uninsured motor vehicle, because it does not differentiate between negligent and intentional actions.

Under the subject policy, the company is obligated to pay to the insureds such sum as the “insured is legally entitled to recover from the owner or operator of any ‘uninsured motor vehicle’ ” for bodily injury caused by an accident. The policy unambiguously requires that the driver’s and owner’s liability for damages “must arise out of the ownership, maintenance, or use of an insured motor vehicle.” Therefore, we first consider whether the insureds’ injuries were caused by accident arising out of the operation, maintenance, or use of an uninsured motor vehicle.

In Travelers Ins. Co. v. Aetna Cas. & Sur. Co., 491 S.W.2d 363 (Tenn.1973), our Supreme Court interpreted the meaning of the phrase “arising out of the ownership, maintenance, or use” of an automobile as it applies to liability coverage. In Travelers, Raymond Lewis Muehlman, a college student, was loading a shotgun into the automobile of a fellow student, Rapai, when the shotgun discharged and injured Rapai. Rapai recovered a judgment for damages against Muehlman, and in a subsequent lawsuit filed against Muehlman’s automobile liability carrier, the chancellor held that Rapai’s injuries resulted from the use of the automobile as defined under the policy. In affirming the trial court’s judgment that coverage was available for Muehlman, the Court said:

The term “arising out of the use” in liability policies has generally been held to be a broad, comprehensive term meaning “origination from,” “having its origin in,” “growing out,” or “flowing from.” (Citations omitted). The term “use,” then, has been a general catchall term construed by the courts to include all proper uses of a vehicle. Appleman, Insurance Law and Practice, Sec. 4316 (1962).

(Emphasis added). Id. at 365.

In Anderson v. Bennett, 834 S.W.2d 320 (Tenn.Ct.App.1992), this Court determined that injuries sustained by an insured when an angry driver discharged a firearm in the direction of a group of children did not arise out of the “use” of the vehicle. In affirming the trial court’s order granting summary judgment to the insurer, the Court said:

In considering the facts of the case at bar, we find that the defendant Bennett’s use of the vehicle to discharge his weapon in the direction of the group of children was not a proper or normal use of the vehicle as required by Travelers, supra. Because we find as a matter of law that the accident did not result from the proper use of Bennett’s vehicle, we find it unnecessary to reach the question. of whether there existed a causal relationship between Bennett’s use of the vehicle and the injury to Laura Anderson.

Id. at 323.

This Court most recently addressed the issue of whether the use of a vehicle to fire a weapon is a “proper use of a vehicle” in Weil v. Gaia, et al, 1999 WL 455432 (Tenn.Ct.App.)(Application for Permission to Appeal denied Oct. 25, 1999). Weil, a passenger in an uninsured vehicle, was injured by a gunshot from the driver of another uninsured vehicle. Plaintiff filed suit against the drivers of both vehicles. The defendant insurance company was served with process and filed a motion to sever the insurance question from the tort action and deny coverage. The motion was denied by the trial court, and on appeal, this Court reversed, stating:

In this case, Gaia used his vehicle to chase Ware’s car, and to fire a weapon at Ware’s car. In view of Anderson, we must conclude that Gaia’s use of his vehicle to fire a weapon at Ware’s car was not a proper use under the uninsured motorist provision of Weil’s insurance policy. This holding makes it unnecessary to reach the issue of whether there was a casual connection between Gaia’s use of his vehicle and the shooting. Therefore, Weil’s injury was not “caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle,” within the meaning of her insurance policy and State Farm is not obligated to provide coverage to her under the uninsured motorist provision.

Id. at *5. The Court did not address uninsured motorist coverage as it might apply to Weil’s suit against the driver of the automobile in which she was riding.

In the instant case, appellees point out that we are dealing with two uninsured motor vehicles, the vehicle from which the gunshot came and the vehicle which collided with the insured. Appellees contend that the policy language does not differentiate between negligent and intentional acts for the hit and run vehicle, and that therefore the vehicle meets the definition of an uninsured motor vehicle in the policy. We must respectfully disagree. Appellees overlook the fact that the use of the vehicle, whether identified or unidentified, must be a proper use in order for the liability to arise out of the use of the vehicle as required in the policy.

Appellees next assert that there should at least be coverage because the Terry vehicle was being used in a proper manner when it collided with the Hawkins vehicle. Conceding that to be a fact, we must then proceed with a second prong of the test described in Travelers to then determine whether there is a causal connection between the use of the Terry vehicle and the injury. Id. at 365. Concerning causation, the Travelers Court said:

Each case turns on its precise individual facts. The question to be answered is whether the injury “originated from,” had its origin in, “grew out of,” or “flowed from” the use of the vehicle.

Id. at 366.

In the instant case, the parties filed a written stipulation of facts which specifically states: “As a result of Taylor being shot, the Terry vehicle left the right ... traffic lane and crossed on to the north side of the roadway.” (Emphasis added). Thus, it is stipulated that the causation in fact of the injuries to the insureds was the action of the person in the unidentified vehicle. In the absence of a casual connection between the driver of the Terry vehicle and the insureds’ injuries, there can be no uninsured motorist coverage.

Accordingly, there is no uninsured motorist coverage provided by the subject insurance policy for the injuries sustained by the insureds for which they seek recovery under docket number 88279-8 TTD, Circuit Court, for the Thirtieth Judicial District of Memphis.

The order of the trial court is reversed, and the case is remanded to the trial court for further proceedings as may be necessary. Costs of the appeal are assessed to appellees, Annie Hawkins and Arnold Hawkins.


author: SWINEY, J.,

text:
    Jesse Robertson MILTIER, III v. Rebecca H. MILTIER (Buhls).
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    May 31, 2000.
    Permission to Appeal Denied by Supreme Court Nov. 6, 2000.

      Jesse Robertson Miltier, III, pro se.
    Robert J. Jessee, Johnson City, for ap-pellee, Rebecca H. Miltier (Buhls).
   OPINION

SWINEY, J.,

delivered the opinion of the court, in which

GODDARD, J., and SUSANO, J., joined.

This is an appeal by Father of the Trial Court’s denial of his Petition to reduce child support and the Trial Court’s Order requiring him to turn over to Mother various photographs taken by him of her current residence and enjoining him from displaying the photographs or taking any other photographs of Mother’s home. For the reasons herein stated, we affirm the Judgment of the Trial Court insofar as it denies the Petition to reduce child support but reverse the Judgment of the Trial Court as to the photographs and vacate the injunction.

Background

Jessee Robertson Miltier, III (“Father”) and Rebecca H. Miltier (Buhls) (“Mother”) were married on March 30, 1985, and have three children, ages 15, 13 and 12. They divorced in 1993. Father works as a registered nurse at the Veteran’s Administration Medical Center in Johnson City, Tennessee. His annual income is $45,020, for a monthly gross income of $3,752.50. He alleges expenses of approximately $2,207 per month exclusive of child support. His monthly child support is $1,062.97 as ordered by the Trial Court on December 8, 1997, after a hearing on Father’s prior Petition for a downward departure from the Child Support Guidelines, which the Trial Court denied at that time.

Mother remarried in 1996 and moved from Tennessee to Bristol, Virginia, with these parties’ three children and her new husband. Father alleges that Mother’s move to Virginia has caused him to incur additional expense in traveling from Johnson City to Bristol, Virginia, to pick up and return his children for visitation and for long distance telephone calls to the children. He complains of excessive debt from legal fees, court costs and missed days from work during the past three years owing to his efforts to resolve “repeated complaints of denied scheduled court ordered visitation.” He also says that, in December 1998, Mother was considering changing employment to become the school nurse at Virginia Middle School and “requested [Father] to obtain family Blue Cross/Blue Shield Medical coverage on their three (3) children.” Father obtained the coverage at a cost of $34.50 biweekly. The record indicates that Mother works as a registered nurse at Johnson City Medical Center, a job she has held for over thirteen years.

On July 28, 1999, Father filed this Petition to Modify Child Support, requesting that his child support be decreased. He attached an Affidavit alleging “numerous” outstanding debts “total approximately $120,000.” He alleged personal expenses of approximately $2,207 monthly and apparently an additional $500 per month which he spends on the children, in addition to his child support payments. Mother filed her response on August 26, 1999. In that response, however, she also alleged, as counter movant:

1. That the counter respondent, without the permission of the counter mov-ant, photographed her home where she currently lives with the parties’ children and her husband. The counter respondent then had these pictures blown up and placed on display at Wal-Mart and other areas where Dads Against Discrimination were having rallies showing in his opinion where his child support was going.
2. Counter movant avers that this action by the counter respondent is an invasion of her privacy, a trespass, and not in the best interest of the children who are required to attend the rallies with him.
3. Counter movant requests that a restraining order issue restraining the counter respondent from further display of the counter movant’s home and that he be immediately ordered to return the photographs and negatives to her.

The Trial Court held a hearing on Father’s Petition on September 27, 1999, at which Father appeared pro se and Mother was represented by counsel. The Trial Court found that Father has had an increase in income to the amount of $3,752.50 per month since the last hearing on November 13, 1997. The Court further found that Father “has failed to show a material change of circumstances to justify a reduction in child support.” Accordingly, the Trial Court denied Father’s Petition for reduction in child support. The Trial Court also ordered Father to “immediately return to Rebecca Buhls any and all photographs of her home along with the negatives and shall be restrained in the future from displaying the photos or taking any other photos of Rebecca Buhls’s home.” Father appeals.

Discussion

As stated, Father filed this appeal pro se. We have reviewed his “Statement of the Issues,” which we can fairly condense as follows:

1. The manner in which the Trial Judge conducted the hearing was so biased and prejudicial that no meaningful review of the issues before the Court was obtained, therefore the Trial Judge has committed judicial misconduct.
2. The Trial Court erred in denying Petitioner’s Motion for Modification to reduce his child support obligation.
3. The Trial Court erred in ordering Petitioner to “return” to Respondent photographs and negatives which were never hers, and in enjoining Petitioner from taking any more photographs of Respondent’s home.

Mother has raised the issue that Father’s appeal is frivolous.

We review the record of the Trial Court de novo with the presumption that the decision of the Trial Court with respect to the facts is correct unless the evidence preponderates against such factual determinations. T.R.A.P. 13(d); Brooks v. Brooks, 992 S.W.2d 403, 404 (Tenn.1999).

At oral argument before this Court, Father announced that he has filed a complaint with the Court of the Judiciary concerning the Trial Court’s manner of conducting the hearing of this Petition. Since that is the appropriate venue for any such claims, we decline to address Father’s first issue here. However, from our review of the record, such as it is, we find that the Trial Court did give Father an opportunity to present proof as to why the Trial Court should deviate downward from the child support guidelines. We also agree with the Trial Judge’s alleged statement to Father that he would be well-served by obtaining counsel to assist him in litigating these matters should the issue of child support arise again in the future.

Father next raises the issue that the Trial Court erred in declining to reduce his child support obligation. T.C.A. § 36 — 5—101(e)(1) provides:

In making its determination concerning the amount of support of any minor child or children of the parties, the court shall apply as a rebuttable presumption the child support guidelines as provided in this subsection. If the court finds that evidence is sufficient to rebut this presumption, the court shall make a written finding that the application of the child support guidelines would be unjust or inappropriate in that particular case, in order to provide for the best interest of the child(ren) or the equity between the parties. Findings that the application of the guidelines would be unjust or inappropriate shall state the amount of support that would have been ordered under the child support guidelines and a justification for the variance from the guidelines.

The Child Support Guidelines, set out in the Rules of Tennessee Department of Human Services, Tenn.Comp.R. & Regs.Ch. 1240-2-4, prescribe, as pertinent:

(5) After determining the net income of the obligor, that amount is to be rounded up to the next dollar. That amount is then multiplied by the percentage below that corresponds to the number of children for whom support is being set in the instant case. The percentages are:
No. of children 1 2 3 4 5 or more
% of income 21% 32% 41% 46% 50%

Tenn.Comp.R. & Regs.Ch. 1240-2-4-.03(5).

That Regulation also provides Criteria for Deviation From Guidelines, which permits a downward deviation “if the obligor demonstrates that he/she is consistently providing more care and supervision for the children than contemplated in the rule.” The Regulation also provides for a deviation “[i]n cases where physical custody of the child(ren) is more equally divided between the parties than occurs in a situation where one party has an average amount of overnight visitation as defined in 1240-2-4.02(6).” Other reasons for downward departure are set forth in 1240-2-4-04(3), (4), (5):

(3) ... When the net income of the obligor exceeds $10,000 per month, the court may consider a downward deviation from the guidelines....
(4) In instances of extreme economic hardship, such as in cases involving extraordinary medical needs not covered by insurance or other extraordinary special needs for the ehild(ren) of the obli-gor’s current family, [child(ren) living in the home with the obligor for whom the obligor is legally responsible] deviation from the guidelines may be considered in order to achieve equity between the parties when the court so finds.
(5)In deviating from the guidelines, primary consideration must be given to the best interest of the child(ren) for whose support the guidelines are being utilized.

In interpreting the Regulations, our Supreme Court has stated:

While § 36 — 5—101(e)(1) does authorize deviation in order to ensure equity between the parties, and while downward deviation is clearly not prohibited, the trial court’s authority to do so must be considered in light of the provisions dealing with such deviation — Rule 1240-2 — 4—.04(2) and (4). Although not exclusive, those subsections provide for downward deviation in three instances: (1) where DHS has taken custody of the child(ren) pursuant to a neglect, dependency, or abuse action; (2) where the children) spend more visitation time with the obligor than is assumed by the guidelines; and (3) in cases in which the obligor is subjected to an “extreme economic hardship,” such as where other children living with the obligor have extraordinary needs. Therefore, the guidelines expressly provide for downward deviation where the obligee has utterly ceased to care for the child(ren); where the obligee clearly has a lower level of child care expense than that assumed in the guidelines; and where the obligor is saddled with an “extreme economic hardship.” Although the rule does not purport to set forth an exhaustive list of instances in which downward deviation is allowed, these specific instances nevertheless are a powerful indication as to the types of situations in which it is contemplated under the guidelines.

Jones v. Jones, 930 S.W.2d 541, 545 (Tenn.1996). The Supreme Court in Jones held that the Trial Court had failed to articulate sufficient grounds to rebut the presumption that the Guidelines were applicable. The Court found that the obligor was not under economic hardship, her income had increased, she had no other dependents, and her visitation schedule was less than contemplated by the Guidelines because her work schedule had increased. Accordingly, the Supreme Court reversed the Trial Court’s downward departure from the Guidelines.

The evidence in the record before us does not preponderate against the Trial Court’s finding that Father failed to prove that he meets any of the above-quoted criteria justifying a downward departure from the Child Support Guidelines. The record reflects that Father’s income has increased, and he has, to our knowledge, no other dependents. Finally, the evidence in the record does not preponderate against the Trial Court’s finding that Father failed to prove “extreme economic hardship” as that phrase is defined by the Regulation and case law. Therefore, we hold the Trial Court did not err in declining to grant Father’s Petition to reduce his child support payments.

Finally, Father complains that the Trial Court erred in requiring him to “return” photographs of Mother’s new home to her and to stop taking and displaying such photographs in the future. We agree with Father. The Trial Court provided no legal basis for that part of its Order, and we find none. There is no dispute that Father took the photographs, made one or more posters from the photographs, and perhaps displayed a poster or posters in a public place, all of which is constitutionally protected under the First Amendment to the U.S. Constitution. Except in limited situations, none of which are applicable here, “[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” H & L Messengers, Inc. v. City of Brentwood, 577 S.W.2d 444, 451 (Tenn.1979)(quoting Police Department of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212, 216 (1972)). From the record before us, and statements made by Father at oral argument, it is clear Father believes that he, as his children’s father, has been unfairly treated by the legal system. Father has the right to hold that opinion and the right to express that opinion. Mother makes no contrary argument on appeal. We reverse the Trial Court’s judgment only insofar as it requires Father to turn over his personal property, the posters and photographs, to Mother, and we vacate the Trial Court’s injunction forbidding him to take and publicly display such photographs in the future.

Mother raises the issue that Father’s appeal is frivolous. Since we have granted relief to Father on one of the issues he has raised, we find the appeal is not frivolous.

Conclusion

The judgment of the Trial Court is affirmed in part, reversed in part, and this cause remanded to the Trial Court for such further proceedings, if any, as may be required, consistent with this Opinion, and for collection of the costs below. The costs on appeal are assessed against the parties equally.

      . There has been no allegation that Father has committed a criminal intrusion as defined in T.C.A. § 39-17-315, Stalking.