In Re Brayleigh C. ( 2022 )

10/19/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
August 18, 2022 Session
IN RE B. C.
Appeal from the Juvenile Court for Lake County
No. 17-000045-01 Andrew T. Cook, Judge
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No. W2021-00910-COA-R3-JV
___________________________________
This appeal involves a dispute between unwed parents, in which the mother filed a petition
to modify a parenting plan and the father filed a counter-petition to modify the parenting
plan and to modify custody. The juvenile court dismissed both the petition and counter-
petition finding that modification was not in the child’s best interests. The father appeals.
We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which ARNOLD B.
GOLDIN and KENNY W. ARMSTRONG, JJ., joined.
John M. Miles, Union City, Tennessee, for the appellant, Bradley S. C.
Andrea D. Sipes, Jackson, Tennessee, and Matthew A. Beaird, Dyersburg, Tennessee, for
the appellee, Cekita L. S.
OPINION
I. FACTS & PROCEDURAL HISTORY
Cekita L. S. (“Mother”) and Bradley S. C. (“Father”) never married, but were in a
relationship and lived together as a family from April 2014 until June 2020. During their
relationship, the parties had a child together, B. C. (“the Child”), who was born in 2016.1
In 2017, while they still lived together, Father filed a “motion” seeking to establish himself
as the father of the Child and to establish a parenting plan. Mother later testified that Father
1
We use initials and abbreviated names to protect the privacy of the Child in this case.
Additionally, we note that both parties each had a child of their own before they had the Child together in
2016. Father had a son who was born in 2012. Mother had a daughter who was born in 2013.
wanted the parenting plan in case they ever separated and she tried to keep the Child away
from him. She explained that Father filled it out and presented it to her, but she had
problems with signing it. She said that she eventually signed it because they had a
confrontation about it and he allegedly threatened her. The juvenile court entered an order
in March 2017 declaring that the parties had entered into an agreed parenting plan in which
Mother was designated as the primary residential parent. Additionally, the court noted that
Father had voluntarily acknowledged paternity of the Child. The parenting plan’s schedule
provided that the Child would spend 183 days with Mother and 182 days with Father.
After the parties separated, Mother filed a petition to modify the existing parenting
plan in July 2020. She sought to establish a new parenting plan “with reasonable parenting
time.” According to the proposed order attached to her petition, she wanted to reduce
Father’s visitation with the Child to every other weekend. Father then filed an answer and
a counter-petition in August 2020. He agreed that the existing parenting plan should be
modified and that a new parenting plan be established. Additionally, however, he sought
to be established as the primary residential parent. He argued that Mother had “abused the
process of the [c]ourts” and had “demonstrated a lack of stability and integrity” such that
the court should establish him as the primary residential parent. He submitted a proposed
parenting plan which provided that the Child would spend 280 days with Father and 85
days with Mother. In October 2020, Father filed a sworn petition for emergency custody
requesting that the court award him custody of the Child. In this petition, he asserted the
following: Mother had allowed her oldest child, who was seven years old at the time, to
post a “revolting” video on TikTok in which she was “twerking” and “behaving in a manner
that would only be appealing to a pedophile”; Mother had recently published a
pornographic video of herself online where she engaged in “illicit and perverted sex acts,”
which Father described as “the most disgusting and debasive behavior”; and the Child had
reported to Father that she had seen a naked man while she was in Mother’s care.2 After
an ex parte hearing, the court entered an order for emergency custody placing custody of
the Child with Father.
Mother then filed an answer to the petition for emergency custody requesting that
the court rescind its order for emergency custody and reinstate custody to Mother. Her
answer included the following: she admitted that a video of her oldest child was posted on
TikTok, without her assistance, and that it was inappropriate; she explained that she
disciplined her oldest child for posting the video on TikTok and that the video was taken
at the maternal grandmother’s home without her knowledge or assistance; she denied that
she recently published a video online of herself engaging in pornographic sexual acts; she
admitted that ten years ago she engaged in a pornographic video for which she was paid;3
2
Father included a jump drive of the two videos referenced in his sworn petition as an exhibit to
the petition.
3
Mother averred that Father had knowledge of the video for several years and only used the video
to “falsely and fraudulently” obtain emergency custody of the Child. According to Father, however, he
was unaware of the video while they were together.
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she denied that the Child had seen her with a naked man; and she stated that Father brought
these charges against her only after he was rebuked and denied the ability to spend time
with her. After a hearing, the court entered an order rescinding its previous order for
emergency custody.
In April 2021, there was a confrontation between the parties when Father came to
Mother’s home in the night and demanded to see the Child. According to Mother, it
happened on a night when her current boyfriend was at her home. She said that there was
no confrontation between Father and her boyfriend. She explained that Father knocked on
her door, she answered the door and spoke with him, and “that was it after that.” However,
he returned later that night banging on the window and screaming, “Where is [B. C.]? I
want to make sure . . . she’s okay.” Mother told him the Child was in the bed asleep, but
he kept demanding to be let in to see the Child. She eventually called the police, who then
made Father leave, and she did not see him anymore that night. According to Father, he
wanted to do a “welfare check” because Mother’s boyfriend was staying overnight at her
home. He explained that he just knocked on the door, Mother came to the door, and he
told her he wanted to check on the Child. He left afterward, but he returned when he
discovered that Mother had called the police. He then spoke with the police to let them
know what was going on. He had hoped to get the police report to mention that Mother’s
boyfriend was there so there would be a record of an overnight guest. However, he stated
that the boyfriend had already left by the time the police arrived.
In June 2021, the juvenile court held a hearing on modification of the parenting plan.
Mother testified about the parties’ relationship when they lived together, explaining that it
had its good days and bad days. She also stated that there was a history of physical abuse
between them which resulted in the police being called on occasion. She admitted to hitting
Father once and “mark[ing] his eye . . . a little bit.” Mother attributed the parties’ separation
in June 2020 to discord that arose between them after their home sold, which was
apparently not owned by them. Therefore, they were unable to live there anymore and
were forced to move. She explained that they could not come to an agreement about where
they should move, which then escalated. After words were exchanged, she stated that she
left the room to try to diffuse the situation and Father came behind her and pushed her
down. She then managed to get away from him and called the maternal grandfather to
come to the house to help her get some of her things. According to Mother, Father retrieved
a gun from his truck when the maternal grandfather came over to the house and warned
him to leave. She stated that she did not take anything from the house besides her clothes
when she left that day. However, she was able to get the rest of her things sometime later.
The parties also separated partly due to the fact that Father became upset with Mother when
he found out she was seeing another man. This man had a number of felony convictions.
She stated that she never lived with this man and denied that he was ever naked in the
presence of the children.
Mother testified that she was the primary caregiver for the Child and carried out her
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“motherly” duties, such as attending the Child’s doctor visits and feeding, bathing, and
nurturing the Child. She did the same for Father’s oldest child who lived with them. She
stated that Father was present in the Child’s life, but he was mainly the breadwinner for
the family when the they were together. She explained, however, that she had worked at
several jobs both before and after the Child was born, such as a senior-adult caregiver, a
postal worker, and a waitress. At the time of the hearing, she had recently started a new
job where she was working a 12-hour night shift at a factory for four days each week. Due
to her current job schedule, she depended a great deal on the maternal grandmother to help
her with the Child. She testified that she was attempting to find another job where she
could work during the daytime. In addition to being employed at the time of the hearing,
Mother was paying $650 in rent for her apartment and had a written lease agreement in her
name.
Mother admitted that she had worked as a stripper in the past and was paid to do a
pornographic video. She testified that Father knew about the video before the Child was
born. According to Mother, Father used the video against her whenever they had a
disagreement. She stated that he told her that she “was a whore” and “didn’t have morals.”
She believed that it was her job as a mother now to set a good example for her children,
but admitted that she did not hold herself to that same standard when she was younger. She
also testified that she was aware of the video of her oldest child dancing and did not approve
of the child’s behavior in the video. There was another video played during the hearing in
which Mother was depicted in beach attire and was bent over dancing. Her current
boyfriend filmed the video during their trip to Florida and posted it online. She said no
one else was around, it was just a playful dance, and she was an adult who could dance and
have fun sometimes. During that trip, she explained that Father had the Child. On a
separate trip to Beale Street in Memphis, she admitted that she had the Child that weekend
and left her to stay with the maternal grandmother while she was on the trip. She also
admitted that she had attended a family member’s birthday party at a club where someone
was killed, and she was interviewed by the police as a result of the incident.
Mother testified about an exchange she had with one of her family members
regarding Father. In that exchange, Mother stated:
I wish you would beat that b***h boy ass. Man, I never knew how much of
a b***h he is. I been trying to make s**t work out with him for so long, and
I’m tired of MF trying to make me feel like I ain’t nobody because his entire
life he has already been around nobody[.]
There was another exchange she had with an acquaintance concerning Father. This
acquaintance had a criminal record, and she admitted to giving him Father’s address.
However, she denied that the exchange was for the purpose of doing some sort of physical
harm to Father. She also testified about her current boyfriend. She stated that he was a
regular visitor at her home and would spend the night approximately one or two nights per
-4-
week when the children were there. He had a home of his own, but she never took her
children there to spend the night. He also had children of his own, but he did not bring
them to her home. She identified him in a photograph in which he was “[f]lipping the
bird,” but she explained that it was “young picture” of him. She was unaware if he had a
criminal history, but she believed that she should check into that. She also admitted to
unilaterally enrolling the Child in the Lake County School System although the existing
parenting plan provided for joint decision-making.
Father testified that when the parties were together, he attended the Child’s doctor
visits and cleaned and cooked. Therefore, he said that Mother did not do those things
exclusively. He agreed that Mother was involved in taking care of the Child and did not
have any complaints about her parenting while they were together. Since June 2020,
however, his opinion about her parenting had changed. He was concerned about her being
with other men with criminal histories and engaging in risky conduct. He thought that the
video of her dancing in Florida was inappropriate. He also disputed Mother’s testimony
and testified that he was unaware of the pornographic video while they were together. He
denied that he ever hit Mother but stated that there were times he restrained her. He
explained that, in most instances, the violence would be initiated by her, and he would then
try to get her to stop.
When they separated, Father admitted that he retrieved his gun from his truck when
the maternal grandfather came to move Mother out. However, he explained that he did not
“flash” it, point it at anyone, or threaten to use it. Instead, he retrieved it as a precaution.
He further explained that it was late, the children were asleep, and the maternal grandfather
was yelling, screaming, and cussing. Father asked the maternal grandfather to leave
because of his behavior, and he was also worried because of the instances where Mother
had allegedly solicited others to do bodily harm to him. Afterward, Father stated that
Mother was given the opportunity to get whatever she wanted out of their home and that
they never had a disagreement about their belongings.
Father testified that he had been employed with the Tennessee Department of
Corrections since 2013 and made “good money.” He was currently a regional coordinator
which involved overseeing clients in West Tennessee, but before that he counseled parolees
and inmates. He explained that his job required him to travel occasionally to Memphis,
but he was not required to do any overnight travel. He further explained that his job has
made him protective of his children because it has made him aware that there are a lot of
bad people in the world. As such, he was very cautious with his children and who he
allowed them to interact with. He wanted to raise the Child in a healthy environment and
hoped that both of his children would be productive, contributing members of society who
would be able to maintain a healthy lifestyle. He tried to put nothing but good in his
children. He also mentioned that he served as the parent representative for the Head Start
program that the Child attended. Therefore, he said that others have trusted his judgment
when it came to children.
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Father testified that he loved the Child more than he loved himself. He explained
that he “really didn’t know love until [he] had a child.” When it came to his children, he
felt that he was selfless and put their interests above his own. He wanted to ensure that the
Child had opportunities and wanted to be a supportive parent so the Child could reach
whatever potential she chose to have. He explained that he was raised by his grandmother
and did not really have his parents around, so he wished to be the parent that he always
wanted to have. He had completed a parenting class, had provided health insurance for the
Child, and had a whole life insurance policy that would be traded in for the Child’s college
education. He also stated that he tried to plan activities for his children and travel with
them. He also attended church and took the child with him. Additionally, the Child had a
room of her own where he was currently living, and he had bought a new home where the
Child would continue to have a room of her own. He believed that his proposed parenting
plan was in the child’s best interests, which provided Mother with every other weekend
each month, half of the holidays, and time during the summer. However, he was open to
possibly providing Mother with extra time. He further testified that he was not opposed to
joint decision-making.
During cross examination of Father, counsel for Mother brought up a video from a
housewarming party that Father and the Child attended. It appears from the transcript that
the video was shown in court via Mother’s iPhone. The video apparently showed
individuals from the party making signs or gestures with their fingers. After the video was
shown, counsel for Father asked if it had been admitted yet, to which counsel for Mother
responded, “I’m going to ask the Judge.” Counsel for Mother then stated, “I want to
introduce this as evidence of whatever it shows and for whatever it’s worth.” Counsel for
Father stated, “I don’t know how you’re going to introduce it.” Counsel for Mother then
stated, “Well, [counsel for Father] is right. I can’t even use it because I’d have to take her
phone and do something with it.” After a few more questions, counsel for Mother said,
“Okay. The Judge can do whatever he wants to do with [the video].” As such, it appears
from the transcript that the video was never offered into evidence. Father was also
questioned about his current girlfriend. He explained that they did things together such as
visiting the park and attending church and dinner together, but she never spent the night
with him when he had his children. He was asked about a photograph of his girlfriend that
was posted online in which she exposed her breasts, but he stated that he had not seen the
photograph before. It does not appear from the transcript that counsel for Mother ever
offered this photograph into evidence.
Several witnesses also testified on Father’s behalf, including his mother, cousin,
barber, co-worker, and the mother of his older child. Those witnesses all attested to
Father’s good character, positive parenting skills, and close relationship with the Child.
The court entered its order in July 2021. The court gave great weight to the
testimony of the various witnesses who testified as to Father’s “emotional fitness” toward
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his Child. Yet, the court ultimately found that Father was not credible based on treatment
of Mother, the confrontation that occurred in April 2021, and the entry and discussion
regarding their parenting plan entered in March 2017. The court found a material change
of circumstances because the parties were living together at the time of the entry of the
parenting plan in 2017 but were now living separately. However, the court did not find
that modification was in the Child’s best interests. The court discussed the relevant factors
and provided more than ten pages of discussion related to the Child’s best interest. The
court dismissed both Mother’s petition for modification and Father’s counter-petition for
modification.
Additionally, the court expressed several concerns about both parties’ behavior,
noting that it was clear “neither party cares in any shape or form for another” and that the
manner and demeanor in which both parties spoke against one another was “disheartening.”
The court continued as follows:
In once again referencing the manner and demeanor of both parties, it is clear
there is true, natural and utter disdain for one another, and their conduct
towards the other (with [Mother] inquiring about persons to possibly “beat
up” or assault [Father], and [Father’s] actions of manipulation and
manufacturing conflicts) is shameful in the eyes of this Court. These actions
in the course of the five (5) hour long hearing in this cause do not give the
Court much hope or faith in either party.
Therefore, the court ordered that both parties were to attend individual counseling and
provide updates of their progress to the court. The court concluded, “It is clear to the Court
that although their relationship is not fixable when it comes to their love for one another,
something must be done to ensure that their parental relationship is repaired and only grows
stronger.” Thereafter, Father timely filed an appeal.
II. ISSUES PRESENTED
Father presents the following issues for review on appeal, which we have slightly
restated:
1. Whether the court erred in considering a photograph of Father’s girlfriend, which
the court found could be “slightly provocative in nature,” when the photograph was
not offered into evidence;
2. Whether the court erred in considering a video, from which the court found that
there appeared to be drinking and smoking of cigarettes, when the video was not
offered into evidence;
3. Whether the court erred in weighing as evidence the circumstances surrounding the
entry into the existing parenting plan or considering why the existing parenting plan
was needed, where (a) the plan was sworn to and subscribed by both parties under
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penalty of perjury; (b) both parties appeared in court and submitted the plan to a
different judge for approval; and (c) the plan was then approved by that judge and
no appeal was taken therefrom; and
4. Whether the court erred in failing to find that the preponderance of the evidence
established that a modification of custody to establish Father as the primary
residential parent was in the Child’s best interests as the court’s finding that it was
not in the Child’s best interests to modify custody to Father was an abuse of
discretion because it reached an illogical result, resolved the issue of the Child’s
best interests based on a clearly erroneous assessment of the evidence, and/or relied
on reasoning that caused an injustice.
For the following reasons, we affirm the decision of the juvenile court.
III. STANDARD OF REVIEW
The Tennessee Supreme Court has “emphasized the limited scope of review to be
employed by an appellate court in reviewing a trial court’s factual determinations in matters
involving child custody and parenting plan developments.” C.W.H. v. L.A.S., 538 S.W.3d
488, 495 (Tenn. 2017) (citing Armbrister v. Armbrister, 414 S.W.3d 685, 692-93 (Tenn.
2013) (stating that the appropriate standard of “review of the trial court’s factual findings
is de novo upon the record, accompanied by a presumption of correctness of the findings,
unless the preponderance of the evidence is otherwise”)). The Tennessee Supreme Court
has explained that
[a] trial court’s determinations of whether a material change in circumstances
has occurred and whether modification of a parenting plan serves a child’s
best interests are factual questions. Thus, appellate courts must presume that
a trial court’s factual findings on these matters are correct and not overturn
them, unless the evidence preponderates against the trial court’s findings.
Id. (quoting Armbrister, 414 S.W.3d at 692 (citations omitted)). “Similarly, appellate
courts will not interfere with a trial court’s custody determination or decision concerning a
parenting schedule absent an abuse of discretion.” In re Jonathan S., No. M2021-00370-
COA-R3-JV, 2022 WL 3695066, at *5 (Tenn. Ct. App. Aug. 26, 2022); see C.W.H., 538
S.W.3d at 495; Armbrister, 414 S.W.3d at 693; Eldridge v. Eldridge, 42 S.W.3d 82, 88
(Tenn. 2001); Dungey v. Dungey, No. M2020-00277-COA-R3-CV, 2020 WL 5666906, at
*2 (Tenn. Ct. App. Sept. 23, 2020). “‘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.’” Id. (quoting C.W.H., 538 S.W.3d at 495). Therefore, we will set aside a trial
court’s decision concerning custody or a parenting plan “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.” Id. (quoting Dungey, 2020 WL 5666906, at *2).
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IV. DISCUSSION
A. Evidentiary Issues
i. Consideration of Evidence Outside the Record
We first address the two issues concerning the juvenile court’s consideration of a
photograph and a video not offered into evidence as exhibits. Interestingly, the question
here is not whether such evidence was admissible or inadmissible; rather, it is whether the
court improperly considered the evidence because it was never offered and admitted into
evidence in the first place.
At the outset, we feel that it is important to review the procedure for the introduction
of exhibits, which is summarized as follows:
An attorney who wants to introduce an exhibit at trial should (a) ask the court
reporter or other court officer to mark the exhibit for identification . . . ; (b)
show the exhibit to adversary counsel (this should be reflected in the record),
thereby giving him the opportunity to raise objections before foundation
questions and answers suggest inadmissible matter; (c) either obtain the
court’s permission to approach the witness to deliver the exhibit for his
inspection or, if required by court rule, ask that a court official present the
exhibit to the witness; (d) lay the proper foundation for the admission of the
exhibit, including proof of authenticity . . . ; and (e) then request that the
exhibit be introduced into evidence.
Edgemon v. Edgemon, No. E2006-00358-COA-R3-CV, 2007 WL 1227467, at *4 (Tenn.
Ct. App. Apr. 26, 2007) (quoting Lawrence A. Pivnick, Tennessee Circuit Court Practice
§ 24:12, at 703-04 (4th ed. 1995)).
The procedure used by the attorneys and the court regarding both the photograph
and video is perplexing. From our review of the transcript, neither the photograph of
Father’s girlfriend nor the video of the housewarming party was ever offered or admitted
into evidence. As previously discussed, counsel for Mother asked Father questions about
the photograph of his girlfriend, but it does not appear from the transcript that counsel for
Mother ever requested that the photograph be introduced into evidence as an exhibit. The
transcript demonstrates that counsel for Mother also showed and asked Father questions
about a video of a housewarming party that he and the Child attended. After attempting to
offer the video into evidence, counsel for Mother conceded that he could not use it. He
said, “I can’t even use it because I’d have to take her phone and do something with it.”
After a few more questions, counsel for Mother then stated “[t]he Judge can do whatever
he wants to with [the video].” Counsel for Father did not object to the questions about the
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photograph or the video, but he did ask at one point whether the video had been admitted
yet. He explained that he was waiting for counsel for Mother to offer the video in order to
make an objection. At oral argument before this Court, counsel for Father stated that he
was not given the opportunity to review the photograph or the video, nor did he request to
see them. At the very least, counsel for Father should have raised an objection to avoid a
potential waiver of this issue. See Tenn. R. Evid. 103(a)(1). Regardless, both the
photograph of Father’s girlfriend and the video of the housewarming party were never
offered and admitted into evidence as exhibits, and they are therefore absent from the
record.
It is apparent from the transcript, however, that at least the video was presented to
and viewed by the judge because he stated, “Well, I would . . . like to see it. I haven’t seen
it. . . . [L]et me take a look there.” Additionally, the court referenced both the photograph
and the video in the “findings of fact” portion of its order. In regard to the photograph, the
court stated that Father’s “girlfriend currently . . . has a social media page on the social
network Instagram which was alleged to display photographs of her in a manner that could
be slightly provocative in nature[.]” In regard to the video, the court stated as follows:
[Father] . . . on cross examination has . . . admitted to attending a party . . .
in Illinois; upon a viewing of a video presented to [Father] and the Court, the
Court must note that at this party, there was what appears to be drinking and
some type of smoking of certain substances (the Court can only assume they
were cigarettes, because the video did not provide audio or visual
confirmation if the items were illegal in any form)[.]
We have “explained that a trial court may not rule upon evidence that is not properly
introduced and admitted in the record.” State ex rel. Moody v. Roker, No. W2019-01464-
COA-R3-JV, 2021 872686, at *7 (Tenn. Ct. App. Mar. 9, 2021). Moreover, “[t]he fair and
impartial administration of justice demands that facts be determined only upon evidence
properly presented on the record.” Tarpley v. Hornyak, 174 S.W.3d 736, 748 (Tenn. Ct.
App. 2004) (quoting Lillie v. United States, 953 F.2d 1188 (10th Cir. 1992) (quoting Price
Bros. v. Philadelphia Gear Corp., 649 F.2d 416, 419 (6th Cir. 1981))).
An evidentiary error is “harmful and call[s] for reversal when ‘considering the
whole record, error involving a substantial right more probably than not affected the
judgment or would result in prejudice to the judicial process.’” In re Estate of Smallman,
398 S.W.3d 134, 152 (Tenn. 2013) (citing State v. Gomez, 367 S.W.3d 237, 249 (Tenn.
2012) (quoting Tenn. R. App. P. 36(b)))4; see also Flax v. DaimlerChrystler Corp., 272
4
Tennessee Rule of Appellate Procedure 36(b) provides in pertinent part that “[a] final judgment
from which relief is available and otherwise appropriate shall not be set aside unless, considering the whole
record, error involving a substantial right more probably than not affected the judgment or would result in
prejudice to the judicial process.”
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S.W.3d 521, 543 (Tenn. 2008). As such, “we will not reverse a trial court’s judgment if an
evidentiary error is harmless.” City of LaVergne v. Gure, No. M2020-00148-COA-R3-
CV, 2022 WL 3709387, at *4 (Tenn. Ct. App. Aug. 29, 2022); see State v. Rodriguez, 254
S.W.3d 361, 370 (Tenn. 2008). Upon further review of the court’s order, we have found
that the two references noted above were the only instances where the court mentioned the
photograph of Father’s girlfriend and the video of the housewarming party. The court did
not reference or include any statements about the photograph or the video in its discussion
of the best interests of the Child.5 Therefore, to the extent that the court erred in considering
the photograph and the video, we conclude that it was harmless.
ii. Circumstances Surrounding the Entry of the Existing Parenting Plan
We next address the issue of whether the court erred in considering the
circumstances surrounding the entry into the existing parenting plan or considering why
the existing parenting plan was needed.6 We note that this issue involves an assessment of
credibility made against Father. The court made a credibility finding against Father due to
“two separate incidents.” One incident was the confrontation that occurred between the
parties in April 2021. The other was the circumstances surrounding the entry into the
existing parenting plan in March 2017, which we discuss here.
The court commended Father for accepting responsibility and assuming his role as
the Child’s father by voluntarily acknowledging paternity. The court questioned, however,
why there was a need to establish a parenting schedule when the parties were still living
together at that point. The court continued as follows:
5
Although the court did not reference the photograph of Father’s girlfriend in its discussion of the
best interests of the Child, it did refer to his girlfriend when discussing factor twelve of the best-interests
factors. However, the court’s reference led it to conclude that factor twelve slightly favored Father:
“[Father] lives in a home he is renovating . . . and his girlfriend will come and stay often with them (though
unlike [Mother’s] boyfriend, she does not spend the night).”
6
Additionally, Father argues that the juvenile court should not have considered the circumstances
surrounding the entry into the existing parenting plan based on the doctrine of res judicata. However, we
have previously answered the question why the doctrine of res judicata
does not apply to bar evidence concerning events that took place before the previous order
was entered when the trial court has already determined that a material change of
circumstances has occurred and is tasked with determining how to modify a parenting plan
consistent with the best interest of a child.
Bowen v. Wiseman, No. M2017-00411-COA-R3-CV, 2018 WL 6992401, at *9 (Tenn. Ct. App. June 29,
2018). We explained that “[t]he ‘material change in circumstances’ step satisfies the requirements of res
judicata.” Id. at *10. Res judicata does not bar a parent from putting on proof relevant to the best-interests
analysis concerning the other parent’s “history of bad behavior just because that behavior took place before
the entry of the last parenting plan.” Id. Here, the court’s finding of a material change in circumstances is
not at issue. Therefore, the court was permitted to consider all evidence relevant to the best-interests factors.
Id. at *11; see Tenn. Code Ann. § 36-6-106(a)(1)-(15).
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[Mother] stated that she reluctantly signed the parenting plan, and almost felt
forced to do it by [Father]. This in the view of the Court establishes that
[Father] by initiating this legal procedure of the parenting plan (a claim made
by [Mother] that was never rebutted by [Father], which the Court therefore
considers admitted as part of the record), was establishing for himself a legal
insurance plan of sort, with a favorable result for him in the parties parenting
schedule (every other week he would have custody of the child). The Court
finds that [Father] entered this with the intent to have a “fail safe” plan, while
the parties were still living together.
The picture painted by both parties is that in March of 2017, that the parties
were living together harmonious with their children as a family. A happy
family unit does not require a permanent parenting plan as a prerequisite to
insure good parenting and successful cohabitation of a family unit.
Based on these circumstances described above and the confrontation that occurred in April
2021, the court believed that Father had demonstrated “a pattern of manipulative actions.”
While the court gave great weight to the testimony of various witnesses regarding Father’s
emotional fitness toward the Child, it did not give great weight to that testimony to counter
any of its findings made regarding the credibility of Father.
This Court would not go so far as to characterize the circumstances surrounding the
entry into the existing parenting plan as a part of a pattern of manipulative actions. As the
court found, Mother did testify that she had problems with signing the parenting plan. Yet,
the parenting plan provided each parent with nearly equal parenting time and designated
Mother as the primary residential parent, even though the plan was filled out by Father.
Both parties signed the parenting plan under the penalty-of-perjury clause and appeared
before a judge who approved and signed the parenting plan.7 Additionally, as a result of
the parenting plan, the parties had a plan in place at the time they separated which allowed
the Child to avoid instability, continue her relationship with each parent, and avoid
potential conflicts regarding parenting time.
Nevertheless, we “afford trial courts considerable deference when reviewing issues
that hinge on witnesses’ credibility because trial courts are ‘uniquely positioned to observe
the demeanor and conduct of witnesses.’” Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn.
2014) (quoting State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000)). This Court “will not
re-evaluate a trial judge’s assessment of witness credibility absent clear and convincing
evidence to the contrary.” Id. (quoting Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783
7
Additionally, we note that the existing parenting plan, the execution of which the juvenile court
found questionable, was signed and approved by Judge Danny Goodman. Further, the terms of that plan
are those which the juvenile court here has found continue to be in the best interest of the Child.
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(Tenn. 1999)); see also Hughes v. Metro. Gov’t of Nashville & Davidson Cnty., 340 S.W.3d
352, 360 (Tenn. 2011). Mother testified that Father wanted a parenting plan in case they
ever separated and she tried to keep the Child away from him. She further explained that
she had problems with signing it, but she eventually signed it because they had a
confrontation about it and he allegedly threatened her. Father never disputed these
statements made by Mother. Relying on Mother’s testimony, the court ultimately
concluded that Father was not credible partly due to the circumstances surrounding the
entry of the existing parenting plan. We reiterate that “[w]hen the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
considerable deference to factual findings made by the trial court.” Batey v. Deliver This,
Inc., 568 S.W.3d 91, 95 (Tenn. 2019) (citing Madden v. Holland Grp. of Tenn., Inc., 277
S.W.3d 896, 898 (Tenn. 2009)). In light of the considerable deference we afford the court
in making this credibility determination, we conclude that it did not err.
B. Modification of Primary Residential Parent
We now address the issue concerning the juvenile court’s determination as to
modification of custody to establish Father as the primary residential parent. “Decisions
involving the custody of a child are among the most important decisions faced by the
courts.” Grissom v. Grissom, 586 S.W.3d 387, 391 (Tenn. Ct. App. 2019) (citing Steen v.
Steen, 61 S.W.3d 324, 327 (Tenn. Ct. App. 2001)). “Once a permanent parenting plan has
been established, ‘the parties are required to comply with it unless and until it is modified
as permitted by the law.’” In re Jonathan S., 2022 WL 3695066, at *5 (quoting Armbrister,
414 S.W.3d at 697).
Tennessee Code Annotated section 36-6-101(a)(2)(B) and (C) governs a request for
a modification of the primary residential parent designation or a modification of the
residential parenting schedule. Hartmann v. Hartmann, No. M2018-00891-COA-R3-CV,
2019 WL 4187500, at *2 (Tenn. Ct. App. Sept. 4, 2019). “It is well settled that courts must
apply a two-step analysis in addressing requests for modification of either the primary
residential parent designation or the residential parenting schedule.”8 In re Jonathan S.,
2022 WL 3695066, at *5 (citing Gentile v. Gentile, No. M2014-01356-COA-R3-CV, 2015
WL 8482047, at *4 (Tenn. Ct. App. Dec. 9, 2015)); see Hartmann, 2019 WL 4187500, at
*2 (“This statute contemplates a two-step analysis, predicated upon a finding that there has
been a material change of circumstance.”). “[T]he court must first determine if a material
change in circumstances has occurred and then apply the ‘best interest’ factors of section
36-6-106(a).” Armbrister, 414 S.W.3d at 697-98 (citations omitted). Therefore, a finding
of a material change in circumstances is a “threshold question.” Id. at 705.
8
This Court has noted that there is “a different set of criteria for determining whether a material
change of circumstance has occurred to justify a modification of a ‘residential parenting schedule’” and
modification of the primary residential parent designation. Hartmann, 2019 WL 4187500, at *2 n.2
(quoting Scofield v. Scofield, No. M2006-00350-COA-R3-CV, 2007 WL 624351, at *3 (Tenn. Ct. App.
Feb. 28, 2007)).
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Here, the court found a material change in circumstances because the parties were
living together at the time of the entry of the parenting plan in 2017 but were now living
separately. On appeal, Father agrees with the court’s finding of a material change in
circumstances. Yet, he disagrees with the court’s finding that it was not in the Child’s best
interests to modify custody to establish Father as the primary residential parent. Citing to
Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011), he contends that that court’s
finding was not supported by a preponderance of the evidence, and it was therefore an
abuse of discretion because it reached an illogical result, resolved the issue of the Child’s
best interests based on a clearly erroneous assessment of the evidence, and/or relied on
reasoning that caused an injustice.
We state again that a trial court has broad discretion in custody matters, which
“extends to the question of which parent should be named primary residential parent.”
Grissom, 586 S.W.3d at 391 (citations omitted). “Thus, ‘the ultimate question as to who
should be the primary residential parent on appeal is whether the trial court abused its
discretion in its selection.’” Id. at 392 (quoting Kathryne B.F. v. Michael David B., No.
W2014-01863-COA-R3-CV, 2015 WL 4366311, at *8 (Tenn. Ct. App. July 16, 2015)
(quoting Maupin v. Maupin, 420 S.W.3d 761, 770 (Tenn. Ct. App. 2013))). Choosing the
primary residential parent involves a comparative fitness analysis, “requiring the court to
determine which of the available parents would be comparatively more fit than the other.”
Chaffin v. Ellis, 211 S.W.3d 264, 286 (Tenn. Ct. App. 2006) (citing Bah v. Bah, 668 S.W.2d
663, 666 (Tenn. 1983)). When conducting this comparative fitness analysis, the court must
consider the best-interests factors set out in Tennessee Code Annotated section 36-6-
106(a). Id. (footnote omitted).
In assessing these factors, this Court has observed that “the welfare and best
interests of the child are the paramount concern in custody, visitation, and residential
placement determinations, and the goal of any such decision is to place the child in an
environment that will best serve his or her needs.” Grissom, 586 S.W.3d at 391 (quoting
Burden v. Burden, 250 S.W.3d 899, 908 (Tenn. Ct. App. 2007) (citation omitted)).
Likewise, “the needs of the child are paramount, and the desires of the parents are
secondary.” Chaffin, 211 S.W.3d at 286 (citing Rice v. Rice, M1998-00973-COA-R3-CV,
2001 WL 812258, at *2 (Tenn. Ct. App. July 19, 2001)). The factors are enumerated as
the following:
(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 . . . past and potential for future performance of parenting
responsibilities, including the willingness and ability of each of the parents .
. . to facilitate and encourage a close and continuing parent-child relationship
between the child and both of the child’s parents, consistent with the best
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interest of the child. In determining the willingness of each of the parents . .
. 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 . . . to honor and facilitate court ordered parenting
arrangements and rights, and the court shall further consider any history of
either parent . . . 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. . . . ;
(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. . . . ;
(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. . . . ;
(14) Each parent’s employment schedule, and the court may make
accommodations consistent with those schedules; and
(15) Any other factors deemed relevant by the court.
Tenn. Code Ann. § 36-6-106(a).9 These factors are non-exclusive. Grissom, 586 S.W.3d
at 393 (citing Beyer v. Beyer, 428 S.W.3d 59, 71 (Tenn. Ct. App. 2013)). Additionally,
9
The Legislature amended this statute effective March 18, 2022, by adding a sixteenth factor. See
2022 Tenn. Laws Pub. Ch. 671 (H.B. 1866), eff. March 18, 2022. However, we consider the factors in
effect at the time the petition was filed in July 2020. See C.W.H., 538 S.W.3d at 497-98 (noting that statutes
are presumed to operate prospectively and not retroactively, unless the statute is procedural in nature).
Regardless, the sixteenth factor, “[w]hether a parent has failed to pay court-ordered child support for a
period of three (3) years or more,” would be inapplicable in this case. Tenn. Code. Ann. § 36-6-106(a)(16)
(2022).
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“determining a child’s best interest is a fact-intensive inquiry.” Id. (citing Solima v. Solima,
No. M2014-01452-COA-R3-CV, 2015 WL 4594134, at *4 (Tenn. Ct. App. July 30,
2015)).
With the foregoing law in mind, we review the juvenile court’s findings as to each
factor. As previously stated, the court explicitly considered each and every factor and
provided more than ten pages of discussion related to the Child’s best interest. For factor
one, the court found that it favored Mother. The court’s findings as to factor one—the
Child’s relationship with each parent—were as follows:
From 2014-2020, the parties resided together as a couple and during that
time, [Father] was considered the breadwinner of the family, working mostly
during the day while [Mother] took care of their child and the parties[’] minor
children with other respective partners from previous relationships. Both
parties appear to have a very strong relationship with their child . . . and their
love for the child is clear. [Mother] testified that she performed motherly
duties for her child, [Father’s] son, and the parties[’] minor child on a daily
basis, and continues to do so, regarding her child and the parties[’] minor
child, while balancing her work schedule. [Father] himself even stated that
he had no complaints regarding “how [Mother] . . . took care of [the Child]”
during the time they were together, and only until they separated, did his
opinion of [Mother’s] parenting change. Both parties[’] work schedule is
different, but the minor child’s schooling and childcare is provided for by
both parties. The Court finds that based on the record as a whole, this factor
favors [Mother].
The testimony indicated that historically Mother was the primary caregiver for the Child
when the parties were together. Although she performed much of the daily parenting
responsibilities, Father also performed some parenting responsibilities. Additionally, we
do not ignore the fact that Father was the primary breadwinner for this family when the
parties were still together. His income allowed Mother to comfortably provide for the daily
needs of the Child. Since their separation in June 2020, the parties have shared parenting
time on a week-to-week basis in accordance with the existing parenting plan.
Consequently, from June 2020 until the hearing in June 2021, both of them have equally
shared in parenting responsibilities related to the daily needs of the Child. For these
reasons, we find that this factor only slightly favors Mother.
The juvenile court found that factor two favored neither party. The court’s findings
as to factor two—each parent’s past and potential for future performance of parenting
responsibilities—were as follows:
The Court was troubled in many instances during the hearing and the proof
presented by both parties. [Mother] has on prior occasion spoke to friends
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and other acquaintances about her frustrations with [Father] and her desire to
see physical harm come about him. Furthermore, [Mother] enrolled the child
in Lake County schools without consulting [Father] . . . . The Court does
note however, that her responsibilities as a parent during her parenting time
have not caused distress to the Court; the totality of the circumstances
establish that [Mother] has acted in a caring and loving manner toward the
parties[’] child . . . and that since the parties[’] separation that the child has
not missed any visitation with either parent. This factor also in the Court’s
view does not favor [Father]; [Father’s] actions regarding the Court’s finding
of his lack of credibility further do not give the Court great assurance of his
willingness and potential for future performances of parenting
responsibilities and also to facilitate and encourage a close parent[-]child
relationship between the parties and the minor child. For this reason, the
Court cannot find neither [sic] party to be favored in regards to this factor.
In an exchange with a family member, Mother expressed a desire to see physical harm
come to Father and admitted to giving Father’s address to an acquaintance who had a
criminal record. However, she denied any intent of physical harm toward Father.
Additionally, Mother admitted to unilaterally enrolling the Child in the Lake County
School System, although the existing parenting plan provided for joint decision-making.
Father wanted to enroll the Child in school in Dyer County, and Mother agreed at the time
of the hearing that the Child should be moved to the Dyer County School System. Father
testified that if the court approved his proposed parenting plan, he was willing to work with
Mother to provide her with unscheduled time if she had an opening and it worked for him.
He was not opposed to joint decision-making, but he was concerned that Mother would
“fly off the hinges.” As the court stated in its findings, there was no history of any denial
of parenting time by either parent.
Despite the foregoing, the court found this factor favored neither party due to its
credibility finding against Father. If not for the credibility finding against Father, we would
find that this factor favors Father. As previously discussed, however, we “afford trial
courts considerable deference when reviewing issues that hinge on witnesses’ credibility
because trial courts are ‘uniquely positioned to observe the demeanor and conduct of
witnesses.’” Kelly, 445 S.W.3d at 692 (quoting Binette, 33 S.W.3d at 217). This Court
“will not re-evaluate a trial judge’s assessment of witness credibility absent clear and
convincing evidence to the contrary.” Id. (quoting Wells, 9 S.W.3d at 783); see also
Hughes, 340 S.W.3d at 360. As such, in light of the court’s credibility finding against
Father, we find that this factor favors neither party.
The juvenile court found that favor three—a parent’s refusal to attend court ordered
parent education—favored Father because he had completed a parenting class and Mother
had not. Although both parties were ordered to complete the parenting class in 2017, Father
ultimately completed the parenting class in May 2021 and provided a certificate of
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completion. There was no evidence that Mother had enrolled in or completed a parenting
class. Therefore, we agree that this factor favors Father.
The juvenile court found that factor four—the disposition of each parent to provide
for the Child—favored both parties equally. The court found that both parties were able to
provide the Child with a home, food, clothing, an education, and the needs and the care
required for the Child to live a healthy and happy lifestyle. Both parties were employed
and had a home for the Child. Father provided health insurance for the Child and had a
whole life insurance policy that he said would be traded in for the Child’s college
education. Additionally, Mother had the Child on TennCare. This Court has no concern
about either parties’ ability to provide the necessary care for the Child. We agree that this
factor favors both parties equally.
The juvenile court found that factor five—the degree to which a parent has been the
primary caregiver—favored Mother. For the same reasons applied in factor one, we find
that this factor only slightly favors Mother.
The juvenile court found that favor six—the love, affection, and emotional ties
between each parent and the Child—favored both parties. The court stated that both parties
loved the Child and were exceptional parents. The court noted that two witnesses unrelated
to Father testified that he had an outstanding bond with the Child. Father’s barber and his
co-worker both had good things to say about the Child’s bond with Father. The mother of
Father’s oldest child also testified that Father was an outstanding father who went above
and beyond for his children. Furthermore, the paternal grandmother and Father’s cousin
testified that Father was a great father. In addition to these witnesses, Father testified about
his love for both of his children and how he put their interests above his own. There was
considerable testimony regarding Father’s love for the Child; however, there is nothing in
the record that would cause this Court to question Mother’s love, affection, and emotional
ties to the Child. Both parties clearly love the Child and have been continuously present
in her life. Therefore, we agree that this factor favors both parties.
The juvenile court found that factor seven—the emotional needs and developmental
level of the Child—favored both parties equally. The court stated that especially due to
the Child’s young age, she was in absolute need of love and support from her parents. The
court further stated as follows:
The parties wish to amend the previous parenting plan to reflect one party
receiving a reduced role in the child’s life through visitation. The parties
lived continuously together as a family for the first 3 ½ years of this child’s
life and since then living bi-weekly with each parent, respectively. The Court
in considering this child’s best interest finds that because of the child’s
familiarity in having a continuous and frequent relationship with both parents
. . . it is in her best interests concerning her emotional needs and her
- 18 -
developmental level that she continue[s] to have the same relationship with
both parents that she currently is benefiting from; therefore, this factor favors
[Mother] and [Father] equally.
In addition to the court’s statements above, we note that the Child does not have any special
needs. Like the juvenile court, we find that the continuous and frequent relationship with
both parties is paramount in considering this factor. Any disruption of the Child’s present
schedule with either parent is not in her best interests. As such, we agree that this factor
favors both parties equally.
The juvenile court found that factor eight—the fitness of each parent—favored
neither party in regard to moral fitness but favored both parties in regard to emotional and
mental fitness. The court reasoned as follows:
Both parties have given the Court concern when it comes to this factor.
Morally, the Court cannot condone in any shape or form [Mother’s] actions
depicted on video in a pornographic manner. Her fitness in that regard is
absolutely questionable but is somewhat cloudy given that the video was
alleged to have been performed long ago, when she lived in Atlanta, Georgia,
prior to meeting [Father] or giving birth to the minor child; furthermore, she
and [Father] have attended church together with the minor child as family,
something the Court does find in her favor for moral fitness. Her mental and
emotional fitness seems to be appropriate given that she has assumed mostly
the role of primary care giver for the majority of the minor child’s life and
furthermore that she has even taken care of her child from a previous
relationship and [Father’s] other child and that up until the separation of the
parties, did [Father] find that her parenting had become questionable. Her
physical fitness is without dispute and is not considered by the Court.
[Father] appears to have great emotional fitness and moral fitness to parent
the child, by the testimony of the witnesses which describe him as a loving
and caring father, always putting his kids first and furthermore by his
attendance in church . . . . But just like [Mother], his moral fitness also can
be questionable; this Court has previously mentioned that his credibility
regarding prior incidents revolving around his treatment of [Mother]
regarding the Parenting plan implementation and the actions and comments
at [her] home in April of 2021, cause the Court to pause in considering his
behavior when weighing moral fitness. It is not moral to manipulate and
manufacture certain outcomes which the Court has found that [Father] has
done in the past, regarding the parenting plan and residential schedule of this
child. For this reason, neither party is favored regarding moral fitness but
both are favored when it comes to the emotional and mental fitness in their
ability to parent the minor child.
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At the outset, we note that both parties testified that they have each attended church
regularly. We agree with the juvenile court that we cannot condone Mother’s actions in
the past which were depicted in the pornographic video. However, we note the video was
made more than a decade ago according to Mother, and it appears she has put that sort of
lifestyle behind her. She was an adult when the video was made, but she was not a mother
at the time and explained that she now holds herself to a different standard compared to
when she was younger. As for Father, we have previously discussed that we would not go
so far as to characterize the circumstances surrounding the entry into the existing parenting
plan as manipulative or manufactured. Additionally, we have recognized the benefits to
the Child from having a plan in place at the time the parties separated. As for Father’s
actions in April 2021, his concern was understandable; however, going to her home at such
a late hour was not an ideal time to address his concern. Ultimately, we agree that there is
some concern in regard to the parties’ moral fitness. Yet, like the juvenile court, we agree
that both parties are emotionally and mentally fit to parent the Child. This factor favors
both parties.
The juvenile court found that factor nine—the Child’s interactions and
interrelationships with other family members and her involvement with her surroundings,
school, and activities—favored both parties equally. The court’s findings were as follows:
The child has lived with her half-brother and sister in the time that is
continuous through the child’s birth up until the present, in which the child
lives with each parent bi-weekly. The testimony from all witnesses and the
parties indicates no evidence of a strained or negative relationship with any
sibling or relative. Furthermore, the parties have support from both sides of
their family, with [Mother’s] mother even showing and providing great
assistance to [Mother] in assisting her in picking up the child from school
and babysitting the child while [Mother] is at work. Furthermore, the parties
are in agreement that they wish for the minor child to attend school in
Dyersburg, TN. The Court finds this factor favors [Mother] and [Father]
equally, as it would appear regarding [Mother], that her mother has a large
role in the child’s life and can continue to assist her with the child when
needed.
From our review of the record, there is no indication of any negative interactions or
interrelationships with a sibling or other relative. The Child lived with her half-brother and
half-sister for the first three-and-a-half years of her life. After the parties separated, the
Child continued to interact with her half-siblings. Father stated that the Child got along
well with her brother. Furthermore, the maternal grandmother spent a lot of time with the
Child due to Mother’s current work schedule. We therefore agree that this factor favors
both parties.
The juvenile court found that factor ten—the importance of continuity—favored
- 20 -
both parties equally. The court applied the same reasoning that it did for factor seven. It
explained its reasoning as follows:
Continuity has been a pattern for this child the majority of her young life; the
Court believes that a substantial disruption that has been requested by both
parties in modifying the parenting plan for this child is not in her best interest
and that furthermore, the continuity which she has been privy to in the past
and in the present time, should continue. Therefore, the Court finds this
factor favors each party equally.
Likewise, we agree that the Child’s continuity is of utmost importance here. The Child
lived in a stable and satisfactory environment for the first three-and-one-half years of her
life when the parties were together. Although she now splits time between the parties, she
continues to live in such an environment in each of their respective homes. We agree that
this factor favors both parties equally.
The juvenile court did not apply factor eleven—evidence of abuse—based on the
circumstances of the case. The court explained that
[t]here was no testimony provided by either party or witnesses to establish
any proof of physical or emotional abuse to the minor child. [Mother] alleges
that [Father] physically assaulted her in the past, but [Father] denies this.
There was no proof from a third party or any exhibits or other forms of
evidence to support her allegations of physical abuse. The Court does pause
to consider the manipulative and manufactured acts by [Father] regarding
[Mother’s] past incidents in the pornographic video, and the Court did not
find his statements credible as to his denial of knowledge [of] the video’s
existence. Because however, the lack of physical evidence other than
[Mother’s] own testimony regarding the video being used against her for
moral purposes, the Court is hesitant to apply this factor in favor of either
party and therefore does not.
As the court noted, there was no proof establishing any physical or emotional abuse to the
Child. However, Mother claimed that there was a history of physical abuse between her
and Father, and she admitted to hitting him once. Father denied that he ever hit Mother but
stated that there were times he restrained her. He admitted that tires had been cut, doors
had been knocked in, and holes had been knocked in the wall, but maintained that he never
struck her. There were also instances where Mother had either expressed a desire to see
physical harm come to Father or allegedly solicited an acquaintance to do physical harm
to him. Whether or not she actually desired to see physical harm come to Father, Father
testified that he was apprehensive on one occasion due to these actions by Mother.
Additionally, there was a confrontation in April 2021 between the parties when Father
came to Mother’s home in the middle of the night and demanded to see the Child. While
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the parties’ stories differ in regard to the physical abuse and the confrontation in April
2021, we conclude that this factor favors neither party.
The juvenile court found that factor twelve—persons who reside in or frequent the
home of a parent—only slightly favored Father. The court’s findings were as follows:
The Court must note here that [Mother] has prior had a relationship with a
felon, who never stayed overnight during [her] parenting time and was never
established to have had many if any interactions with the Child. At the
present time, it appears [Mother] has a home that is free of any criminal
activity and is an appropriate dwelling; [Mother’s] boyfriend does frequent
her home, but he was never established to have engaged in any criminal
activity or been convicted of any crimes himself and appears to be a working
father of two children. Should this statute say “Person who has frequented
in recent time”, then this factor would overwhelmingly favor [Father].
[Father] lives in a home he is renovating . . . and his girlfriend will come and
stay often with them (though unlike [Mother’s] boyfriend, she does not spend
the night). Because of [Mother’s] past relationship in which a felon has
frequented her home, this factor slightly favors [Father].
Around the time the parties separated, Mother was seeing another man who had a number
of felony convictions. In Father’s sworn petition for emergency custody in October 2020,
he stated the Child had reported to him that she saw this man naked while she was in
Mother’s care. However, Mother denied that the man was ever naked in the presence of
her children. At the time of the hearing, she had a boyfriend who was a regular visitor at
her home and would spend the night about one or two nights a week when her children
were there. There was no evidence to establish that he had a criminal history or had
engaged in any criminal activity. Father also had a girlfriend at the time of the hearing, but
he stated that she never spent the night with him when he had the children. Therefore, we
agree that this factor slightly favors Father.
The juvenile court found that factor thirteen—the preference of the Child—did not
apply because the Child was only four years old. Given the age of the Child, we agree.
The juvenile court found that factor fourteen—each parent’s employment schedule—
favored both parties equally. The court stated as follows:
The parties work schedule is made complicated somewhat by [Mother’s]
frequent job changes. [Father] has been employed by the same employer, in
the same capacity for the past six (6) years. Testimony by [Father] indicated
that due to the ongoing COVID-19 pandemic he has been allowed to work
from home, and also that he would have to travel occasionally to Memphis,
but the rest of his office hours would differentiate between Dyersburg and
Union City . . . . [Mother’s] schedule of 3rd shift is somewhat convoluting
- 22 -
but it appears that she has great assistance from her mother to take care of
the child when she has to leave for work at 6 p.m. each night . . . . For this
reason, it appears that her work schedule also allows her to take the minor
child to school in the mornings and when she is able to, have her . . . or her
mother pick the child up from school. Because of the continuity of [Father’s]
schedule and also the assistance [Mother] receives from her mother, both
parties are equal when it comes to this factor regarding the child’s best
interest.
Father has had a stable job with the Tennessee Department of Corrections since 2013.
Additionally, his work situation was flexible and allowed him to work from home.
Conversely, Mother had worked multiple jobs in the past. At the time of the hearing, she
was working a 12-hour night shift at a factory for four days a week. Thus, compared to
Mother’s work schedule, Father’s work schedule was much more flexible. See Brunetz v.
Brunetz, 573 S.W. 3d 173, 182 (Tenn. Ct. App. 2018) (comparing the flexibility of each
parents’ work schedule). Due to her work schedule, Mother depended on the maternal
grandmother for assistance, and she and her children were required to stay with the
maternal grandmother for four nights each week. Mother testified that she was making
efforts to find a new job with better hours. Therefore, she recognized that her current
schedule was not ideal and admitted to depending a great deal on the maternal grandmother
under the circumstances. As such, we find that this factor favors Father.
In addition to these factors, the juvenile court considered for factor fifteen—any
other factors deemed relevant by the court—the circumstances surrounding the signing of
the existing parenting plan, the confrontation that occurred in April 2021, and the claims
that Father made concerning the pornographic video. The court stated as follows:
The Court has already stated . . . it does not find [Father’s] intentions credible
regarding the proposition to [Mother] regarding the Parenting Plan, the
actions and comments he made regarding what he claimed “making sure his
child was ok” . . . in April of this year, and finally his claims he did not know
prior to the relationship ending with [Mother], the existence of her
performance in a pornographic video, or that he never used videotape against
her for moral reasons during arguments and any other general argument. The
Court finds that because it appears [Father] has multiple times manipulated
or manufactured a situation, it is not in the best interest of the child to make
him the primary residential parent and change custody. The Court views the
incident of April 2021, as a clear attempt to interfere in the parenting time of
[Mother]. For this reason, the Court considers these incidents as factors in
determining the best interest of the minor child.
In light of the trial court’s credibility finding against Father as explained supra, we find
that this factor favors Mother.
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Based on its review of the factors, the juvenile court ultimately concluded that
modification was not in the best interests of the Child. While we have reached a slightly
different result in regard to some of the factors above, we cannot determine that the
evidence preponderates against the juvenile court’s ultimate findings. Further, because this
is a custody matter, we reiterate that the ultimate question here is whether the court abused
its discretion, Grissom, 586 S.W.3d at 392, and that “an appellate court should not ‘tweak’
absent an abuse of discretion,” Armbrister, 414 S.W.3d at 706 (citing Eldridge, 42 S.W.3d
at 88). “The abuse of discretion standard does not require a trial court to render an ideal
order . . . to withstand reversal.” Bowen, 2018 WL 6992401, at *11 (quoting Eldridge, 42
S.W.3d at 88). Therefore, we also conclude that the court’s ruling did not fall “outside the
spectrum of rulings that might reasonably result from an application of the correct legal
standards to the evidence.” In re Jonathan S., 2022 WL 3695066, at *5 (quoting Dungey,
2020 WL 5666906, at *2).
V. CONCLUSION
For the aforementioned reasons, we affirm the decision of the juvenile court. Costs
of this appeal are taxed to the appellant, Bradley S. C., for which execution may issue if
necessary.
_________________________________
CARMA DENNIS MCGEE, JUDGE
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