Matthew Reyes Camacho v. Jessica Lynne Camacho ( 2022 )

10/07/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 17, 2022 Session
MATTHEW REYES CAMACHO v. JESSICA LYNNE CAMACHO
Appeal from the Chancery Court for Maury County
No. 20-173 Russell Parkes, Judge
___________________________________
No. M2021-00994-COA-R3-CV
___________________________________
Mother appeals the trial court’s order naming Father primary residential parent. Because
the trial court’s findings of fact are at times vague, inconsistent, and appear to improperly
rely on the trial judge’s recollection of testimony from a prior hearing rather than
appropriate proof, we vacate the judgment of the trial court and award Mother her
reasonable attorney’s fees.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated
and Remanded
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which ARNOLD B.
GOLDIN and CARMA DENNIS MCGEE, JJ., joined.
Christina Hammond Zettersten, Brentwood, Tennessee, for the appellant, Jessica Lynne
Camacho.
OPINION
I. FACTUAL AND PROCEDURAL BACKGROUND
The parties, Jessica Lynne Camacho (“Mother”) and Matthew Reyes Camacho
(“Father”) were married in 2013. Two children were born of the marriage, a son born in
2007 (“Son”), and a daughter born in 2010 (“Daughter”). Father filed a complaint for
divorce in April 2020 in Maury County Chancery Court (“the trial court”). The parties
enjoyed equal parenting time in the summer of 2020.
In July 2020, the trial court held a pendente lite hearing to determine a temporary
parenting plan for the children. In an August 5, 2020 order, the trial court found that Father
was “not credible, was evasive,” and was currently in recovery from an alcohol problem.
The trial court further found that Mother’s boyfriend, Adam Stamey, was “a horrible
witness.” Mother, however, was “impressive.” Moreover, the trial court found that
Mother’s role as the children’s primary caregiver strongly favored Mother. As such, the
trial court ultimately concluded that Mother would be named the primary residential parent,
while Father was essentially awarded every other weekend visitation once school began.
The trial court also cautioned Mother that she would “be served well not to expose the
children to Mr. Stamey.”
A final hearing occurred on July 22, 2021. Mother, Father, and Son were the primary
witnesses. Mother focused much of her testimony on Father’s history of alcohol abuse and
his failure to be involved with the family due to his alcohol use. Father admitted that his
alcohol use made him uninvolved with the children during the marriage. He testified,
however, that at the time of the separation he completed a month-long inpatient alcohol
rehabilitation program and that he had been sober for a year. Mother testified in contrast
that despite Father’s sobriety he still was not involved in the children’s lives, as she was
the parent who attended all sporting and school events, made all doctor’s appointments,
and ensured that the children had their medicine even when staying with Father. Father
testified, however, that he had attended one sporting event, one telephonic school
conference, and some doctor’s appointments for the children.
Father focused much of his testimony on Mother’s romantic relationship with Mr.
Stamey. The proof at trial showed that Mother had largely denied being romantic with Mr.
Stamey at the pendente lite hearing, while Mr. Stamey had admitted that the pair was
romantic. Moreover, by the time of the divorce trial, Mother had given birth to another
child; there was no dispute that this child was fathered by Mr. Stamey, rather than Father.
So it appeared that Mother and Mr. Stamey conceived this child only a few months after
the pendente lite hearing. Still, Mother testified that Mr. Stamey does not live with her and
that she only spends overnights with him when the children are with Father. Son confirmed
that Mr. Stamey did not live with Mother, but that he does bring his own daughter to
Mother’s home, as she and Daughter are long-time best friends.
Mother was somewhat equivocal about her plans to marry and move in with Mr.
Stamey in the future, stating that it was not a near-future plan. Father objected to his
children being around Mr. Stamey at all. When asked why, he stated that his objection
stemmed from Mr. Stamey’s “inappropriate conduct with my wife,” explaining that such
conduct does not “set[] a good example for my children.” He admitted, however, that he
was friends with Mr. Stamey for years before the romantic relationship and had no qualms
about the man being around his children prior to the separation. Mr. Stamey did not testify
at the final hearing.
The parties’ living arrangements were also at issue. Both parties had vacated the
marital residence. Mother was living in a two-bedroom trailer owned by her mother; the
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children shared a room in this residence. Father lived in a five-bedroom home with his
mother, step-father, and a roommate. The children had their own rooms in this home,
though Father admitted that his step-father drinks in the home and can be loud at times.
The trial court entered its written final order on August 6, 2021. Therein, the trial
court referenced the proof submitted at the pendente lite hearing including that Mr. Stamey
was a “horrible witness,” “made terrible choices,” and “was not a good person.” The trial
court further found that at the prior hearing, Mr. Stamey’s “demeanor on the witness stand
was poor” and he was “completely without credibility, his testimony incredible, and not
worthy of belief.” The trial court also found that Mother had lied to the court about her
relationship with Mr. Stamey. In contrast, the trial court found that Father was credible at
the final hearing. Ultimately, after considering the statutory best interest factors, the trial
court found that Father should be named primary residential parent and Mother awarded
essentially every other weekend visitation with the children. The trial court also ruled that
“[n]either parent shall have guests of the opposite sex overnight under inappropriate
circumstances.” Mother thereafter appealed to this Court.
II. ISSUES PRESENTED
Mother raises three issues, which are taken from her appellate brief:
1. Whether the trial court abused its discretion by naming Father as the primary
residential parent and only awarding Mother 107 days of parenting time?
2. Whether the trial court abused its discretion by including a paramour provision in
the parenting plan?
3. Whether Mother should be awarded her attorney fees?
Father did not file a brief or otherwise participate in this appeal.
III. ANALYSIS
The central issue in this case is the permanent parenting plan ordered by the trial
court. “While a trial court has broad discretion in fashioning a parenting plan, the
touchstone is the best interest of the child.” Smallbone v. Smallbone, No. M2020-01556-
COA-R3-CV, 2022 WL 1405655, at *4 (Tenn. Ct. App. May 4, 2022) (citing Tenn. Code
Ann. § 36-6-106(a) (2017); Maupin v. Maupin, 420 S.W.3d 761, 770 (Tenn. Ct. App.
2013)). While a trial court’s determination of whether a parenting plan serves a child’s best
interest is a finding of fact, Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013),
“determining the details of parenting plans is ‘peculiarly within the broad discretion of the
trial judge.’” Id. at 693 (quoting Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988)). As
a result,
“It is not the function of appellate courts to tweak a [residential parenting
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schedule] in the hopes of achieving a more reasonable result than the trial
court.” Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001). A trial court’s
decision regarding the details of a residential parenting schedule should not
be reversed absent an abuse of discretion. Id. “An abuse of discretion occurs
when the trial court . . . appl[ies] an incorrect legal standard, reaches an
illogical result, resolves the case on a clearly erroneous assessment of the
evidence, or relies on reasoning that causes an injustice.” Gonsewski v.
Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011). A trial court abuses its
discretion in establishing a residential parenting schedule “only when the
trial court’s ruling falls outside the spectrum of rulings that might reasonably
result from an application of the correct legal standards to the evidence found
in the record.” Eldridge, 42 S.W.3d at 88.
Armbrister, 414 S.W.3d at 693.
Generally, a parenting plan should allow each parent maximum participation in the
life of the child consistent with “the location of the residences of the parents, the child’s
need for stability,” and the non-exclusive best interest factors contained in section
36-6-106(a)(1)–(15).1 Tenn. Code Ann. § 36-6-106(a). This provision does not, however,
“mandate that the trial court establish a parenting schedule that provides equal parenting
time[.]” Gooding v. Gooding, 477 S.W.3d 774, 784 n.7 (Tenn. Ct. App. 2015). Instead,
“[t]he plain language of [s]ection 36-6-106(a) directs courts to order custody arrangements
that allow each parent to enjoy the maximum possible participation in the child’s life only
to the extent that doing so is consistent with the child’s best interests.” Flynn v.
Stephenson, No. E2019-00095-COA-R3-JV, 2019 WL 4072105, at *7 (Tenn. Ct. App.
Aug. 29, 2019) (quoting In re Cannon H., No. W2015-01947-COA-R3-JV, 2016 WL
5819218, at *6 (Tenn. Ct. App. Oct. 5, 2016)).
In order to determine the best interests of the children in this case, the trial court was
required to consider the following factors:
(1) The strength, nature, and stability of the child’s relationship with each
parent, including whether one (1) parent has performed the majority of
parenting responsibilities relating to the daily needs of the child;
(2) Each parent's or caregiver’s past and potential for future performance of
parenting responsibilities, including the willingness and ability of each of the
parents and caregivers to facilitate and encourage a close and continuing
parent-child relationship between the child and both of the child’s parents,
1
The best interest factors changed slightly during the pendency of this appeal to include a new
factor (16): “[w]hether a parent has failed to pay court-ordered child support for a period of three (3) years
or more[.]” See 2022 Tenn. Laws Pub. Ch. 671 (H.B. 1866), eff. March 18, 2022. This new subsection is
neither applicable nor relevant to the current case.
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consistent with the best interest of the child. In determining the willingness
of each of the parents and caregivers to facilitate and encourage a close and
continuing parent-child relationship between the child and both of the child’s
parents, the court shall consider the likelihood of each parent and caregiver
to honor and facilitate court ordered parenting arrangements and rights, and
the court shall further consider any history of either parent or any caregiver
denying parenting time to either parent in violation of a court order;
(3) Refusal to attend a court ordered parent education seminar may be
considered by the court as a lack of good faith effort in these proceedings;
(4) The disposition of each parent to provide the child with food, clothing,
medical care, education and other necessary care;
(5) The degree to which a parent has been the primary caregiver, defined as
the parent who has taken the greater responsibility for performing parental
responsibilities;
(6) The love, affection, and emotional ties existing between each parent and
the child;
(7) The emotional needs and developmental level of the child;
(8) The moral, physical, mental and emotional fitness of each parent as it
relates to their ability to parent the child. The court may order an examination
of a party under Rule 35 of the Tennessee Rules of Civil Procedure and, if
necessary for the conduct of the proceedings, order the disclosure of
confidential mental health information of a party under § 33-3-105(3). The
court order required by § 33-3-105(3) must contain a qualified protective
order that limits the dissemination of confidential protected mental health
information to the purpose of the litigation pending before the court and
provides for the return or destruction of the confidential protected mental
health information at the conclusion of the proceedings;
(9) The child’s interaction and interrelationships with siblings, other relatives
and step-relatives, and mentors, as well as the child’s involvement with the
child’s physical surroundings, school, or other significant activities;
(10) The importance of continuity in the child’s life and the length of time
the child has lived in a stable, satisfactory environment;
(11) Evidence of physical or emotional abuse to the child, to the other parent
or to any other person. The court shall, where appropriate, refer any issues of
abuse to juvenile court for further proceedings;
(12) The character and behavior of any other person who resides in or
frequents the home of a parent and such person’s interactions with the child;
(13) The reasonable preference of the child if twelve (12) years of age or
older. The court may hear the preference of a younger child upon request.
The preference of older children should normally be given greater weight
than those of younger children;
(14) Each parent’s employment schedule, and the court may make
accommodations consistent with those schedules; and
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(15) Any other factors deemed relevant by the court.
Tenn. Code Ann. § 36-6-106 (2020).
The foregoing factors are non-exclusive, Beyer v. Beyer, 428 S.W.3d 59, 71 (Tenn.
Ct. App. 2013), and “determining a child’s best interest is a fact-sensitive inquiry.” Solima
v. Solima, No. M2014-01452-COA-R3-CV, 2015 WL 4594134, at *4 (Tenn. Ct. App. July
30, 2015). Consequently, we have held that
[a]scertaining a child’s best interests does not call for a rote examination of
each of [the relevant] factors and then a determination of whether the sum of
the factors tips in favor of or against the parent. The relevancy and weight to
be given each factor depends on the unique facts of each case. Thus,
depending upon the circumstances of a particular child and a particular
parent, the consideration of one factor may very well dictate the outcome of
the analysis.
Id. (citing In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App. 2005)).
While “there is no statutory requirement that the court list every applicable factor
along with its conclusion as to how that particular factor impacted the overall custody
determination,” the statute nevertheless “requires the trial court to consider all the
applicable factors.” Murray v. Murray, No. M2009-01576-COA-R3-CV, 2010 WL
3852218, at *8 (Tenn. Ct. App. Sept. 28, 2010). Moreover, Rule 52.01 of the Tennessee
Rules of Civil Procedure mandates that trial courts make findings of fact and conclusions
of law following bench trials. As such, “Tennessee case law reflects that meaningful
appellate review is far more feasible when the trial court’s order demonstrates that it indeed
considered the factors enumerated in section 36-6-106, and clearly articulates its reasoning
in reaching its conclusion as to best interest.” Grissom v. Grissom, 586 S.W.3d 387, 393–
94 (Tenn. Ct. App. 2019). Therefore, “this Court has encouraged trial courts to ‘be as
precise as possible in making child custody findings’ in order to facilitate meaningful
appellate review.” Id. (quoting Belardo v. Belardo, No. M2012-02598-COA-R3-CV, 2013
WL 5925888, at *7 (Tenn. Ct. App. Nov. 1, 2013)).
Mother’s argument on appeal is two-fold. First, Mother argues that the trial court’s
determination that the children’s best interests would be served by naming Father primary
residential parent is based on improper factual findings. Second, Mother argues that the
trial court’s decision to impose a paramour clause does not comply with existing Tennessee
law. We agree with Mother on both counts.
Here, the trial court did undertake an analysis of the relevant best interest factors.
Some of those factors are considered in detail by the trial court. But often the trial court’s
findings do little to illuminate its reasoning. Take factor (1) as an example. The trial court’s
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finding as to this factor is as follows:
The Court finds that when the determination of temporary custody occurred
a year ago, this factor strongly favored Mother. The Mother has continued to
be the primary caregiver under the Court’s temporary parenting order.
Considering the proof presented at trial, the Court now finds that this factor
only slightly favors Mother.
Thus, the trial court notes that while Mother has continued to be the primary caregiver of
the children, this factor—involving which parent has performed the majority of parenting
responsibilities for the children—now only slightly favors Mother. But the trial court’s
order does not provide any factual findings explaining why it made this determination,
particularly given a later finding that Mother “was performing most of the parenting
responsibilities leading up to trial.”
While “[t]here is no bright-line test by which to assess the sufficiency of factual
findings,” the trial court’s “findings of fact must include as much of the subsidiary facts as
is necessary to disclose to the reviewing court the steps by which the trial court reached its
ultimate conclusion on each factual issue.” Lovlace v. Copley, 418 S.W.3d 1, 35 (Tenn.
2013) (internal quotation marks and citations omitted). Here, we are simply unable to
determine what facts led the trial court to find that this factor favored Mother only slightly
by the time of the final hearing. Instead, the trial court’s finding on this factor amounts to
little more than a conclusory determination that a factor favors one parent without any
“factual findings whatsoever to underpin this allocation.” Grissom, 586 S.W.3d at 397. We
have previously held that such a practice is not sufficient to permit meaningful appellate
review. Id. Thus, the trial court’s findings as to Mother’s role as the children’s primary
caregiver were both deficient and contradictory, an issue that effects more than one of the
statutory best interest factors.
It is true that some of the trial court’s consideration of the statutory factors contain
more detailed findings than set out above. But these findings are not without their own
problems. Importantly, the trial court focuses considerable attention on Mother’s paramour
throughout the final order. Indeed, Mr. Stamey was mentioned with regard to factors (2),
(8), (9), and (12). Certainly, Mother’s relationship with Mr. Stamey was relevant to some
factors. See, e.g., Tenn. Code Ann. § 36-6-106(a)(12) (concerning the character and
behavior of individuals who frequent the home). We have difficulty, however, discerning
how Mother’s relationship with Mr. Stamey was relevant to factor (2)—concerning the
parent’s past and future potential for performing caregiving responsibilities and facilitating
the relationship between the children and the other parent. Nothing in the trial court’s
findings as to this factor explains how Mother’s relationship interfered with her
performance of caregiving responsibilities or facilitation of the relationship between Father
and the children. See Sutherland v. Sutherland, 831 S.W.2d 283, 286 (Tenn. Ct. App.
1991) (“Sexual infidelity or indiscretion does not ipso facto disqualify a parent from being
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awarded custody. However, when the parent’s sexual activities or indiscretion involve
neglect of the minor child, such neglect may be considered in relation to the best interest
of the minor child.”). As such, we are left to wonder how the trial court’s findings support
its conclusion that this factor slightly favors Father. Indeed, without some guidance as to
how the trial court reached its decision, we are left with doubt as to whether the trial court
properly refrained from using its custody decision to penalize Mother for her decision to
engage in a relationship with Mr. Stamey. See, e.g., Ray v. Ray, 83 S.W.3d 726, 734 (Tenn.
Ct. App. 2001) (citing Rice v. Rice, 983 S.W.2d 680, 683 (Tenn. Ct. App. 1998))
(“Custody decisions should not be used to punish parents for past misconduct or to
award parents for exemplary behavior.”).
Even more importantly, the trial court focused heavily on Mr. Stamey’s testimony
and credibility in its final order. But Mr. Stamey did not testify at the final hearing, nor was
a transcript of his prior testimony introduced at trial. Mother asserts that under these
circumstances, it was error for the trial court to rely on the prior testimony. We agree.
A similar issue was discussed in State v. Crowe, No. 03C01-9606-CC-00225, 1997
WL 420779 (Tenn. Crim. App. July 29, 1997). In Crowe, the defendant was charged with
rape and incest. Id. at *1. His first trial resulted in a mistrial. The defendant was then
prosecuted for violating his probation. As the violation of probation hearing, the State
presented no proof but instead asked the judge to take judicial notice of the proof submitted
at the mistrial. The judge “responded that it was not necessary for him to
take judicial notice as he had heard the testimony himself.” Id. No transcript of the earlier
trial was therefore admitted as proof. The judge ultimately revoked the defendant’s
probation on the basis of the rape and incest charges. Id.
On appeal, the defendant argued that because the only evidence that he committed
rape or incest was the judge’s memory of the prior proof, the judge had become a witness
rather than a neutral arbiter. Id. at *2. The Court of Criminal Appeals tended to agree:
Initially, we note that the trial court may take judicial notice of any
fact that is capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned. Tenn. R. Evid. 201. A
court may take judicial notice of facts in an earlier proceeding in the same
case, and the final action taken in the case. Pruitt v. State, 3 Tenn. Crim.
App. 256, 460 S.W.2d 385, 395 (Tenn. Crim. App. 1970). However,
judicial notice in such cases has been applied, for instance, to recognize the
previous conviction and the record on direct appeal in considering a post-
conviction petition, Trolinger v. Russell, 1 Tenn. Crim. App. 525, 446
S.W.2d 538, 542 (Tenn. Crim. App. 1969), a finding that a defendant is a
habitual offender, Pruitt, 460 S.W.2d at 395, or a proceeding for a writ of
habeas corpus, State ex rel. Leighton v. Henderson, 1 Tenn. Crim. App. 598,
448 S.W.2d 82, 89 (Tenn. 1969). In Trolinger, the court commented that the
trial court “took judicial notice of all of its prior judgments, records, etc., as
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a matter of fact.” 446 S.W.2d at 542.
Considering the use of judicial notice in these cases and the
requirement that judicial notice only be taken of facts that are capable of
accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned, the credibility of the witnesses or the weight of
their testimony are not proper subjects for judicial notice. In this case, the
trial court went beyond recognizing that the witnesses had testified to
particular facts. He considered the credibility of witnesses who had not
testified in the immediate proceeding and whose credibility had not been
previously established by judgment or jury verdict. When he did so, he
moved out of the realm of judicial notice and became, in effect, a witness in
the proceeding. A trial court may not take judicial notice of facts based on
personal knowledge. State ex rel. Newsome v. Henderson, 221 Tenn. 24,
424 S.W.2d 186, 188 (Tenn. 1968).
Crowe, 1997 WL 420779, at *3. Thus, the trial judge’s action in relying on “his own
recollection of the rape trial” was a “questionable procedure at best.” Id.The Court of Criminal Appeals further noted that the State had other avenues in
which to present its proof. In fact, in revocation of probation hearings, reliable hearsay is
permitted. Id. (citing Practy v. State, 525 S.W.2d 677, 680 (Tenn. Crim. App. 1974)). And
under Rule 804 of the Tennessee Rules of Evidence, an exception to the hearsay rule exists
for
Testimony given as a witness at another hearing of the same or a different
proceeding or in a deposition taken in compliance with law in the course of
the same or another proceeding, if the party against whom the testimony is
now offered had both an opportunity and a similar motive to develop the
testimony by direct, cross, or redirect examination.
Tenn. R. Evid. 804(b)(1). But the State had made no effort to present a transcript from the
prior trial during the revocation hearing. Crowe, 1997 WL 420779, at *4. So “it was [the
judge’s] memory of the testimony, not the transcript, upon which the trial judge relied.”
Id.Still, the Court of Criminal Appeals did not hold that this constituted reversible
error. Instead, the court noted that when the State asked the trial judge to take judicial notice
of the previous proof, the defendant did not object. In fact, the defendant asked that the
trial judge consider other proof that was previously submitted. The court therefore held that
“by not objecting to the trial court’s procedure, while even adopting the same procedure,
the defendant cannot now complain of that process.” Id. (citing Tenn. R. App. P. 36(a)).
So the revocation of probation was affirmed. Id.-9-
A later panel of the Tennessee Court of Criminal Appeals, however, did hold that it
was reversible error for the trial judge to rely on its recollection of prior testimony. See
State v. Johnson, No. 01C01-9510-CC-00334, 1997 WL 738582 (Tenn. Crim. App. Dec.
1, 1997). In Johnson, the trial court relied on its recollection of the proof presented in a
prior hearing to which the defendant was not a party. Id. at *4. The court noted that while
“the trial court can take judicial notice of its own orders and judgments in cases before
it, see Hughes v. State, 2 Tenn.Crim.App. 71, 73, 451 S.W.2d 696, 697 (1969), reliance
upon its own recall of the evidence in those cases is not the same.” Johnson, 1997 WL
738582, at *4. Citing Crowe, the court opined that it was essentially “being asked to review
sentencing determinations based upon the trial court's reliance upon its recollection of
evidence from another trial that was not presented as evidence in this case.” Id. But “none
of [the proof relied on by the trial court] [wa]s properly a part of the record of the sentencing
hearing in this case.” Id. As a result, the court held that it had “no means of conducting
a de novo review of the record that would lead to an educated determination of an
appropriate sentence”2 and that it was required to “vacate the defendant’s sentence and
remand the case for a new sentencing hearing.” Id.The trial court judge here did exactly what was cautioned against in Crowe and
Johnson. Mr. Stamey did not testify at the final hearing.3 Nothing in the record suggests
that Father attempted to compel his testimony or that he was an unavailable witness. And
even more importantly, neither party offered a transcript of Mr. Stamey’s prior testimony
as proof at the final hearing. Nevertheless, in its final order, the trial court relied on proof
that was not presented at the final hearing, including Mr. Stamey’s criminal record and Mr.
Stamey’s prior testimony, particularly his demeanor, credibility, and character. In fact, Mr.
Stamey is mentioned at least ten times in the trial court’s final best interest analysis. Yet
the trial court still does not explain what facts or testimony led the trial court to conclude
that he was a “horrible witness.” Reference to the pendente lite order is also of little
assistance, as it does nothing more than state that Mr. Stamey was a “horrible witness.”4
Thus, the trial court appears to have improperly relied upon its own recollections of Mr.
Stamey’s testimony in violation of the guidance provided by Crowe.
2
We note that Tennessee now applies “an abuse of discretion standard of review, granting a
presumption of reasonableness to within-range sentencing decisions” to criminal sentencing decisions.
State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). That change has no effect on Johnson’s persuasive value
for purposes of its holding that the trial court erred in relying on its recollection of prior testimony.
3
Our observations as to Mr. Stamey are equally true as to another witness who testified at the
pendente lite hearing, but not the final hearing: Father’s brother-in-law. Our analysis as to the trial court’s
reliance on Mr. Stamey’s prior testimony applies with equal force to this witness.
4
Judges are generally permitted to take judicial notice of their prior orders. See Mandela v.
Reynolds, No. 01-A-01-9303-CH00126, 1993 WL 236607, at *2 (Tenn. Ct. App. June 30, 1993). This
circumstance illustrates the benefit of entering orders with detailed findings of fact. Had the pendente lite
order contained more detailed findings about Mr. Stamey’s testimony and credibility, the trial court may
have been correct in relying on it. But because the prior order was so conclusory, there was little for the
trial court to rely on in its final order.
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Moreover, unlike in Crowe, it does not appear that Mother invited the error now
complained of. The trial court’s final order recites that Mother acknowledged that Mr.
Stamey “was a terrible witness and made terrible choices.” While Mother did admit that
Mr. Stamey was a “horrible” witness, she did not admit that he had made terrible choices.
And even to the extent that Mother admitted that Mr. Stamey was a terrible witness, nothing
in the transcript or either of the trial court’s orders gives us any background as to what
rendered Mr. Stamey’s testimony so lacking. As such, we cannot conclude that Mother
waived the argument she now makes on appeal concerning the trial court’s reliance on its
recollection of the Mr. Stamey’s testimony.
To be sure, we agree that the character and conduct of Mr. Stamey is highly relevant
to the best interests of the children at issue in this case. See, e.g., Tenn. Code Ann. § 36-6-
106(a)(12). But the judge must be cautious that in its effort to protect children it does not
cross over the invisible barrier of impartiality to become a witness or advocate for one
party. Cf. Nestor v. State, 243 Md. 438, 446, 221 A.2d 364, 369 (Md. 1966) (holding that
the judge’s questioning did not “cross ‘the line of impartiality over which the judge must
not step’” (quoting Vandegrift v. State, 237 Md. 305, 311, 206 A.2d 250, 254 (Md.
1965)). Unfortunately, here the trial court crossed that line by appearing to rely on its own
recollections of Mr. Stamey’s testimony.5
Mother’s brief points out a second issue with regard to the trial court’s parenting
plan, which again appears to stem from Mr. Stamey’s place in Mother’s life. In particular,
the trial court imposed what is commonly known as a “paramour provision” in the
permanent parenting plan. Although the prohibition against having overnight guests of the
opposite sex applies equally to both parents, no testimony was presented to indicate that
there was a concern that Father was having overnight guests. As such, this prohibition
appears to be aimed at Mother’s relationship.
Respectfully, the manner in which the trial court imposed this prohibition is
erroneous. As an initial matter, we note that the language chosen by the trial court is fatally
vague in that it prohibits all overnight guests of the opposite sex “under inappropriate
circumstances.” The plain language of this prohibition does not limit its application only
to those times when the children are present; a plain reading of its terms suggests that it
applies regardless of where the children are residing. Moreover, the caveat “under
inappropriate circumstances” is not defined, leading both this Court and surely the parties
to guess as to its application. In general, trial courts should endeavor to enter orders that
are “clear, specific, and unambiguous” lest the court is unable to enforce its order through
its contempt power. Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249
S.W.3d 346, 354 (Tenn. 2008). Respectfully, the paramour provision contained in the
permanent parenting plan falls far short of these requirements.
5
We emphasize that there are no allegations of actual or apparent bias in this case against the trial
judge.
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The basis for the imposition of this prohibition is also lacking from the trial court’s
order. In general, a non-consensual paramour provision cannot be affirmed without
evidence that it is in the best interests of the children. Barker v. Chandler, No. W2010-
01151-COA-R3-CV, 2010 WL 2593810, at *6 (Tenn. Ct. App. June 29, 2010) (“Finding
the record completely devoid of any evidence demonstrating that the paramour provision
is in the best interests of the children or that the presence of Mother’s partner in the home
has any harmful effect on the children, we find that the trial court abused its discretion.”);
see also Mashburn v. Mashburn, No. E2015-01173-COA-R3-CV, 2016 WL 3639495, at
*10 (Tenn. Ct. App. June 30, 2016) (deleting the paramour provision because no evidence
was presented that the paramour’s presence would pose a risk to the child); Toyos v.
Hammock, No. W2011-01649-COA-R3-JV, 2013 WL 177417, at *36–37 (Tenn. Ct. App.
Jan. 17, 2013) (vacating overnight paramour provision where trial court made no finding
that allowing parent overnight visitation while a girlfriend was present “would jeopardize
the child, in either a physical or moral sense”) (internal quotation marks omitted); Small v.
Small, No. M2009-00248-COA-R3-CV, 2010 WL 334637, at *19 (Tenn. Ct. App. Jan. 28,
2010) (finding “the trial court abused its discretion by imposing a restriction on Husband’s
visitation” where there was “no clear and definite evidence suggesting that contact with
Husband’s girlfriend would jeopardize the child’s health or well-being”). The trial court’s
written order does not mention the paramour provision beyond the single sentence included
in the parenting plan. As such, the order contains no finding that such a prohibition is in
the best interests of the children, much less factual findings that would serve as the basis
for that determination.
In sum, we agree that the trial court’s best interest findings are at times vague,
contradictory, and appear to rely on facts not supported by the evidence contained in the
record on appeal. Due to these deficiencies, Mother asks that we reverse the trial court’s
decision to name Father primary residential parent and fashion our own parenting plan in
which she is named primary residential parent. We note, however, that “[d]etermining a
child’s best interest is a fact-sensitive inquiry, and, depending upon the significance of
certain facts, a single factor can control the outcome of this determination.” Solima, 2015
WL 4594134, at *4. This Court, however, is not a fact-finder. State v. Flake, 114 S.W.3d
487, 506 (Tenn. 2003). In other cases where the trial court’s order was insufficient, we
have held that “the appropriate remedy is to vacate the judgment of the trial court and
remand for the entry of an order in accordance with this opinion.” Nelvis v. Baptist, No.
W2018-01763-COA-R3-JV, 2019 WL 5566352, at *7 (Tenn. Ct. App. Oct. 29, 2019).
Indeed, the Court of Criminal Appeals held that vacatur of the trial court’s judgment is the
proper remedy when the trial court improperly relies on its own recollections of prior
testimony. Johnson, 1997 WL 738582, at *4.
We therefore conclude that the appropriate remedy here is likewise to vacate the
judgment of the trial court and remand for the entry of an order in accordance with this
Opinion. The trial court may, in its discretion reopen the proof as to the circumstances that
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existed at trial. Moreover, the trial court may consider the circumstances that exist
currently. See, e.g., Wall v. Wall, No. W2010-01069-COA-R3-CV, 2011 WL 2732269, at
*26 (Tenn. Ct. App. July 14, 2011) (“[E]vents and lives have not stood still while this
custody dispute has been in the courts.” (quoting Gorski v. Ragains, No. 01A01-9710-GS-
00597, 1999 WL 511451, at *4 (Tenn. Ct. App. July 21, 1999))); In re Carter K., No.
M2017-01507-COA-R3-JV, 2018 WL 896060, at *6 (Tenn. Ct. App. Feb. 14, 2018) (“In
light of the passage of time and events taking place in the lives at stake, the juvenile court
may, in its discretion, consider additional evidence to ensure that any custody order is based
on the parties current actual circumstances.”).
Finally, Mother seeks an award of the attorney’s fees she incurred in this appeal6
under Tennessee Code Annotated section 36-5-103(c):
A prevailing party may recover reasonable attorney’s fees, which may be
fixed and allowed in the court’s discretion, from the nonprevailing party in
any criminal or civil contempt action or other proceeding to enforce, alter,
change, or modify any decree of alimony, child support, or provision of a
permanent parenting plan order, or in any suit or action concerning the
adjudication of the custody or change of custody of any children, both upon
the original divorce hearing and at any subsequent hearing.
Section 36-5-103(c) “authorizes courts to award reasonable attorney’s fees to the
prevailing party in an action to enforce any decree for alimony, child support, or child
custody.” Eberbach v. Eberbach, 535 S.W.3d 467, 475 (Tenn. 2017). Fees under this
statute may be awarded for both trial court proceedings and on appeal. Id. Such “awards
for legal expenses in custody or support proceedings are ‘familiar and
almost commonplace.’” Sherrod v. Wix, 849 S.W.2d 780, 785 (Tenn. Ct. App. 1992)
(quoting Deas v. Deas, 774 S.W.2d 167, 170 (Tenn. 1989)); see Eberbach, 535 S.W.3d at
476. “In considering a request for attorney’s fees on appeal, we consider the requesting
party’s ability to pay such fees, the requesting party’s success on appeal, whether the appeal
was taken in good faith, and any other equitable factors relevant in a given case.” In re
C.W., 420 S.W.3d 13, 22 (Tenn. Ct. App. 2013) (quoting Darvarmanesh v.
Gharacholou, No. M2004-00262-COA-R3-CV, 2005 WL 1684050, at *16 (Tenn. Ct.
App. July 19, 2005). Given the success of Mother’s arguments and the equities of this case,
we conclude that Mother should be awarded her reasonable attorney’s fees incurred in this
appeal.
IV. CONCLUSION
6
The trial court ruled that each party would pay their respective attorney’s fees incurred in the trial
court. Mother has not taken issue with this ruling, so we infer that her position on appeal is that she should
be awarded attorney’s fees incurred solely in this appeal.
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The order of the Maury County Chancery Court is vacated and this cause is
remanded for further proceedings consistent with this Opinion and for the determination of
Appellant Jessica Lynne Camacho’s reasonable attorney’s fees incurred in this appeal.
Costs of this appeal are assessed against the Appellee, Matthew Reyes Camacho, for which
execution may issue if necessary.
S/ J. Steven Stafford
J. STEVEN STAFFORD, JUDGE
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