Durham v. Durham ( 1998 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
December 14, 1998
Cecil W. Crowson
ERIC KYLE DURHAM, ) Appellate Court Clerk
)
Plaintiff/Appellee, )
) Appeal No.
) 01-A-01-9803-CV-00129
VS. )
) Marion Circuit
) No. 11990
MISTY DAWN DURHAM, )
)
Defendant/Appellant. )
APPEALED FROM THE CIRCUIT COURT OF MARION COUNTY
AT JASPER, TENNESSEE
THE HONORABLE BUDDY D. PERRY, JUDGE
HANK HILL
HANK HILL & ASSOCIATES,
ATTORNEYS, P.C.
701 Cherry Street, Suite 200
Chattanooga, Tennessee 37402
Attorney for Plaintiff/Appellee
PHILLIP A. NOBLETT
NELSON, McMAHAN & NOBLETT
400 Pioneer Bank Building
Chattanooga, Tennessee 37402
Attorney for Defendant/Appellant
AFFIRMED AND REMANDED
BEN H. CANTRELL
PRESIDING JUDGE, M.S.
CONCUR:
CAIN, J.
TODD, J.
MEMORANDUM OPINION1
The only issue raised in this appeal is whether the trial judge’s award of
custody to the father can stand without “appropriate findings of facts in accordance
with Tenn. Code Ann. § 36-6-106.” We affirm the lower court’s order.
I.
In a December 12, 1997 decree, the Circuit Court of Marion County
granted the appellant, Eric Kyle Durham, a divorce and awarded him the care,
custody, and control of his minor child, Brittany Nicole Durham.
The issue raised on appeal by the appellant is:
WHETHER THE TRIAL COURT PROPERLY
DETERMINED THE ‘‘BEST INTERESTS’’ OF BRITTANY
DURHAM WHEN IT GRANTED CUSTODY TO THE
FATHER ERIC DURHAM WITHOUT APPROPRIATE
FINDINGS OF FACTS IN ACCORDANCE WITH T.C.A.
§ 36-6-106?
A reference to Tenn. Code Ann. § 36-6-106 does not reveal a
requirement that the court make specific findings of facts in custody cases. The
statute does require that a custody determination be made on the basis of what is in
the best interests of the child, and in making that determination, the court should
consider all relevant factors. The statute then goes on to enumerate ten factors that
the court should consider “where applicable.”
1
Rule 10(b) of the Rules of the Court of Appeals reads as follows:
The Court, with the concurrence of all judges participating in the case, may
affirm, reverse or modify the actions of the trial court by memorandum opinion when
a form al opin ion w ould h ave n o pre ced entia l value . W hen a cas e is de cided by
memorandum opinion it shall be designated “MEMORAN DUM OPINION,” shall not be
published, and s hall not be cited or relied on for any reason in a subsequent unrelated
case.
-2-
Although the appellant does not refer to Rule 52.01, Tenn. R. Civ. Proc.,
that rule requires the trial judge, in a case tried without a jury, to make findings of facts
when a party requests such findings before the entry of judgment. The record,
however, does not reveal that such a request was made in this case.
II.
The appellant does not argue that the evidence preponderates against
the trial judge’s implicit finding that the best interests of the child will be served by
placing her with her father. See Rule 13(d), Tenn. R. App. Proc.; Bah v. Bah, 668
S.W.2d 663 (Tenn. App. 1983). We have, however, examined the record and are
satisfied that the mother’s conduct during her separation, her continuing liason with
the father of her second child, and her apparent lack of candor in court are factors that
bear on how well the child’s interests would be served in her custody.
The judgment of the court below is afirmed and the cause is remanded
to the Circuit Court of Marion County for any further proceedings that may become
necessary. Tax the costs on appeal to the appellant.
_____________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
_____________________________
WILLIAM B. CAIN, JUDGE
_____________________________
HENRY F. TODD, JUDGE
-3-