Susan Ellen Calfee Muhonen v. James Lucius Muhonen

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
October 30, 2014 Session
SUSAN ELLEN CALFEE MUHONEN v. JAMES LUCIUS MUHONEN1
Appeal from the Circuit Court for Bradley County
No. V-05-409 Lawrence Howard Puckett, Judge
No. E2013-02601-COA-R3-CV-FILED-FEBRUARY 20, 2015
This post-divorce parenting dispute arose when the father filed a petition to modify the
parties’ permanent parenting plan as to their two minor children. Concomitantly with entry
of the final judgment for divorce, the trial court had entered a permanent parenting plan order
on January 19, 2007, designating the mother as the primary residential parent and granting
the father residential co-parenting time on alternating weekends and Wednesday evenings.
This parenting plan was later modified by agreement in an order entered June 17, 2008.
Nearly five years later on July 27, 2012, the father filed the instant petition to modify the
permanent parenting plan. He alleged that a dangerous situation existed at the mother’s
home and requested an emergency ex parte order naming him the primary residential parent,
which the trial court immediately granted. Upon a hearing, the trial court entered an order,
inter alia, confirming the father as the primary residential parent, pending further
proceedings, on August 13, 2012. Following a final hearing conducted approximately one
year later, the trial court found that a material change in circumstance had occurred since
entry of the June 2008 permanent parenting plan and that it was in the children’s best interest
for the father to be declared their primary residential parent with sole decision-making
authority. The mother has appealed. Discerning no reversible error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., C.J., and D. M ICHAEL S WINEY, J., joined.
1
The father’s middle name was spelled, “Lucious,” in several pleadings contained in the record. The
father clarified in his answer to the original complaint for divorce that his middle name is spelled, “Lucius,”
and the correct spelling was used on the final judgment from which this appeal is taken.
Judith A. DePrisco, Knoxville, Tennessee, for the appellant, Susan Ellen Calfee Muhonen.
Philip M. Jacobs, Cleveland, Tennessee, for the appellee, James Lucius Muhonen.
OPINION
I. Factual and Procedural Background
The petitioner, James Lucius Muhonen (“Father”), and the respondent, Susan Ellen
Calfee Muhonen (“Mother”), were married nine years prior to the entry of a final judgment
of divorce on January 19, 2007. During the marriage were born two children (“the
Children”), a son who was six years old and a daughter who was two years old at the time
of the divorce judgment. Through the parties’ permanent parenting plan entered with the
divorce decree, the trial court designated Mother as the Children’s primary residential parent.
The court granted Father co-parenting time with the Children on alternate weekends and for
two hours on Wednesday evenings, as well as fourteen additional days during the summer
season. The court stated in the Judgment for Divorce that “[a]t the expiration of three
months the court will review the visitation schedule to determine whether or not to
implement Wednesday overnight visitation.” The parties were granted joint decision-making
responsibility as to the Children.
Father subsequently filed a petition to modify the original permanent parenting plan,
and following a hearing, the trial court entered an agreed order adopting a modified parenting
plan on June 17, 2008. While maintaining Mother as the primary residential parent, the
agreed parenting plan increased Father’s co-parenting time from 104 to 132 days per year,
primarily by increasing his two-hour co-parenting time on Wednesday evenings to overnight
co-parenting on Wednesdays.
One month later on July 17, 2008, Father filed a second petition to modify the
permanent parenting plan, averring that a material change in circumstance had occurred
because Mother had become pregnant, remarried, and relocated to Farragut, Tennessee, sixty-
six miles away from her previous home. Father’s petition further alleged that Mother’s
relocation was “a direct attempt to alienate the Father from the children” and that it disrupted
the Children’s lives. Father requested that the trial court name him the primary residential
parent or, in the alternative, restrain Mother from relocating. Mother subsequently filed a
motion to dismiss the petition. Following a hearing conducted on August 25, 2008, the trial
court denied Mother’s motion to dismiss Father’s petition and ordered the parties to
participate in mediation, pursuant to a provision of their permanent parenting plan. The court
entered this order on October 17, 2008. No further action was taken regarding Father’s July
2008 petition.
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Nearly five years passed before Father initiated the instant action on July 27, 2012,
by filing a new petition to modify the permanent parenting plan and requesting an ex parte
order naming him the primary residential parent. In his petition, Father alleged that a
dangerous situation existed at Mother’s residence that had resulted in Mother’s arrest for
aggravated domestic violence against her paramour, G.G., on July 23, 2012. The trial court
immediately granted Father the requested ex parte order, temporarily naming him the primary
residential parent pending further hearing. At the conclusion of hearings conducted on
August 13, 2012, and August 15, 2012, the trial court entered an order, inter alia, confirming
Father as the primary residential parent pending further hearing, granting Mother residential
co-parenting time on alternate weekends, and requiring Mother to submit to psychological
counseling and drug and alcohol assessment prior to a final hearing. This order was entered
on September 21, 2012.
During the years between entry of the June 2008 permanent parenting plan and the
instant action, Father had remarried. His second wife, Kristi Muhonen, testified at trial on
his behalf. Mother and her second husband, Eric Elliott, had divorced in 2010. Mother’s
marriage to Mr. Elliott produced a son who was three years old and residing with Mother at
the time of the July 23, 2012 incident resulting in her arrest.2 At the time of these
proceedings, Father had been employed as an investigator with the Tennessee Bureau of
Investigation (“TBI”) for several years. Likewise, Mother had been a teacher in the Bradley
County School system for several years. Following Mother’s arrest on July 23, 2012,
however, she was suspended from her position pending an investigation, and her employment
was ultimately terminated by the school board. At the time of the final judgment in this
action, Mother was appealing her employment termination.
During the August 2012 proceedings, Corporal David Harper with the Bradley County
Sheriff’s Department testified that on July 23, 2012, he was approached in a parking lot by
G.G. at approximately 8:00 p.m. G.G. reported that he had been assaulted, showing Corporal
Harper scratches and minor welts on his chest, shoulders, and back, as well as bite marks on
his arm. After determining that the location of the alleged assault would be within the
2
In its final judgment deciding the instant action, the trial court included the following footnote
describing a separate proceeding involving Mother’s child with Mr. Elliott:
The factors that apply to these custody and visitation issues did not apply in the case
involving Mother’s child by Mr. Elliott. In Elliott, this court, exercised its appellate
jurisdiction and heard the dependency and neglect case. This court found that the three (3)
year-old was not a dependent and neglected child within the definition set out in Tenn. Code
Ann. § 37-1-102(12)(A) through (J). Once this court found that the child was not dependent
and neglected, the Chancery Court of Knox County, not this court, had jurisdiction over
custody issues regarding the Elliott child.
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Cleveland City Police Department’s jurisdiction, Corporal Harper requested that a city police
officer be dispatched to investigate. Corporal Harper opined that G.G. was coherent and did
not appear to be intoxicated.
Cleveland City Police Department Officer Julius Porter testified that he responded to
the request for an investigation into G.G.’s allegations and accordingly followed G.G. from
the parking lot where he had approached Corporal Harper to Mother’s residence. At the
residence, Officer Porter interviewed Mother, who denied that an assault had taken place.
He also spoke with Mother’s three-year-old child, who nodded in response to questions
regarding whether Mother had “hit” G.G. and whether Mother had told the child to bite G.G.
Officer Porter stated that he found an aluminum baseball bat lying on the floor five or ten
feet inside Mother’s bedroom doorway. When he questioned Mother regarding a wooden
paddle G.G. had described, Mother produced it from the same drawer where G.G. had said
it was located. Officer Porter testified that based on the totality of the circumstances, he
believed Mother to be the primary aggressor and arrested her on a charge of aggravated
domestic violence. He opined that neither Mother nor G.G. appeared intoxicated and that
he would have arrested G.G. for driving under the influence of a controlled substance if he
had believed G.G. to be intoxicated.
Mother at all times denied having assaulted G.G. Mother testified that she had been
involved with G.G. for two to three months prior to the July 2012 incident. She stated that
although she had known G.G. was in the process of a divorce, she had not attempted to end
their relationship until she learned from G.G.’s estranged wife that he had violated a Georgia
restraining order and was charged with stalking his estranged wife. According to Mother,
G.G. came to her home to paint a room on July 23, 2012. They drove together to
Chattanooga to purchase paint, lunch, “skinny wine,” and “skinny margaritas.” According
to Mother, once she and G.G. returned to her home, she drank only one glass of wine and
stayed primarily downstairs with her three-year-old son. She acknowledged pouring herself
a second glass of wine, but she stated that the glass was “knocked off” and spilled while
nearly full. Mother described G.G. as seemingly unable to stand without falling after he
consumed alcohol that day. Mother explained that she attempted to clean G.G. in the shower
because he had rolled paint on himself. After G.G. came out of the shower, he saw that she
had sent text messages to someone, and he became angry. Mother stated that she first asked
G.G. to leave at approximately 5:00 p.m., and he eventually left two hours later.
G.G. testified that following the July 23, 2012 incident, he had recanted his victim
statement and requested that the district attorney’s office dismiss the domestic assault charge
against Mother. He stated that he no longer believed Mother assaulted him. G.G. further
testified that although he did not “really drink,” he did drink alcohol Mother provided him
that night to the point that he became too intoxicated to remember what occurred. He
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maintained that his bite marks were the result of the three-year-old child’s becoming excited
during a tickling game and biting him. G.G. acknowledged that he was in the process of
obtaining a divorce and that he was facing charges in Georgia related to violation of a
restraining order obtained by his estranged wife. He also acknowledged that he had been
terminated from his last two employment positions as a registered nurse. He further testified
that he and Mother had engaged in sexual relations on Sunday, July 29, 2012, after the
alleged assault and that he was relying partially on Mother to help him remember what
occurred on July 23, 2012.
On October 3, 2012, the trial court sua sponte issued a notice, pursuant to Tennessee
Supreme Court Rule 10B, advising the parties that no conflict of interest existed on the
judge’s part. Mother subsequently filed a motion for recusal on October 30, 2012, which the
trial court denied by order entered the next day. On December 23, 2012, Mother filed a
motion to dismiss Father’s petition, requesting return of the Children to her primary
residential care. Mother averred that the criminal charges against her arising from the July
23, 2012 incident had been dismissed, that G.G. had been charged with filing a false police
report, and that she had completed an alcohol and drug assessment and a hair follicle drug
screen with negative results. She also maintained the falsity of Father’s claims in his petition
regarding her behavior, particularly that she slept during the day while the Children were
with her and exhibited a pattern of abusive behavior.
The trial court conducted a final hearing over the course of two days: July 19, 2013,
and August 6, 2013. In addition to the parties, several witnesses testified on each party’s
behalf respectively. Father presented Justin Miller, a booking officer with the Bradley
County Sheriff’s Department, who reviewed Mother’s “Inmate Intake Form” from the night
of July 23, 2012, and confirmed that he had written an observation on the form that Mother
was “[i]ntoxicated at the time of booking and crying.” Officer Miller acknowledged that
Mother had not been charged with any alcohol-related offense.
Father also called as a witness a former paramour of Mother’s, J.S.M., who testified
that he had been romantically involved with Mother for six to eight months, culminating in
the spring of 2011. The parties’ son practiced with a basketball team and a baseball team
coached by J.S.M. during the 2010-2011 season. The parties’ son also played on a different
basketball team coached by Father. J.S.M testified that Mother “pulled” the parties’ son from
practice with his team when she ended their romantic relationship. J.S.M. further testified
that Mother drank wine while she was taking prescription medication during the months that
he knew her and while the Children were present in her home. He reported Mother’s taking
“three to maybe five pills” “on a daily/weekly basis,” but Ambien was the only specific
medication he remembered. He did recall that one of Mother’s medications was an anti-
seizure drug. According to J.S.M., Mother would “pass out” approximately twice a week
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from the combination of medication and alcohol. When questioned regarding what he meant
by “pass out,” J.S.M. explained that “it would be harder to wake her up than a normal
person.” J.S.M. acknowledged that he was hurt when Mother ended their relationship, but
he denied harboring any ill will toward her.
Father’s current wife, Kristi Muhonen, testified that Father and she were married in
August 2011. In addition to the Children, Ms. Muhonen’s two sons from previous
relationships, who were twelve years old and six years old respectively at the time of trial,
resided primarily with them as well. She described their marital relationship as close and
stable, and she believed her relationship with the Children to be positive and nurturing. Ms.
Muhonen described instances in which she had overheard Mother “screaming” at Father
when the Children were present, and Ms. Muhonen described one recent incident when she
believed Mother had been urging the parties’ son by telephone to testify on her behalf. Other
witnesses who testified regarding a positive environment in Father’s home for the Children
included a pastor who led the Children’s church youth groups and Ms. Muhonen’s sister.
Regarding her alleged mixture of prescribed medication and alcohol, Mother testified
that if she “were to drink a glass of wine, it would be at dinnertime and then, you know, and
then take an Ambien later on.” She acknowledged that after participating in counseling, she
later learned that taking Ambien after drinking wine “wasn’t the best of choices.” Mother
indicated that by the time of trial, she was taking only two medications regularly: one
prescribed to control seizures and one prescribed to control high blood pressure.
Mother presented witnesses, including her aunt, her sister, and a former student’s
mother, who testified generally that Mother’s relationship with the Children was loving and
nurturing and that Mother had always provided for the Children’s needs. The former
student’s mother testified that she had witnessed Father’s being “hard on” the parties’
daughter when he coached the daughter’s basketball team. Mother’s aunt stated that she
believed Father to be an “abuser,” and Mother’s sister stated that she had observed Father to
have a “bad temper.”
At the close of trial, the court found that a material change in circumstance had
occurred since entry of the June 2008 parenting plan and that it was in the Children’s best
interest for Father to be declared their primary residential parent. In an order entered
September 17, 2013, the trial court, inter alia, denied Mother’s motion to dismiss the
petition, designated Father as the primary residential parent, and adopted Father’s proposed
permanent parenting plan, including his designation as the parent with sole decision-making
authority for the Children. The court further ordered Mother to (1) obtain meaningful
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counseling and treatment, (2) cease all name-calling of and false allegations against Father,
(3) refrain from contacting Father’s employer, and (4) cease and desist all contact with G.G.
Mother subsequently filed a motion to alter or amend the judgment, and Father filed
a motion requesting an award of attorney’s fees and discretionary costs. In an order entered
October 31, 2013, the trial court denied all relief requested by Mother regarding the
permanent parenting plan except to note that the parties had stipulated that they would
attempt to align holiday co-parenting time to facilitate Mother’s spending designated holidays
with the Children at issue and her youngest child together. The court specifically found that
the Children would “not benefit from joint decision making” and ordered that Father would
“remain the decision maker on behalf of the children.” The Court awarded Father attorney’s
fees in the amount of $12,709.69 and discretionary costs in the amount of $1,777.50. The
trial court also entered an amended permanent parenting plan providing Father with 245 days
and Mother with 120 days of annual residential co-parenting time. The day-to-day schedule
in this permanent parenting plan is essentially an inversion of the June 2008 plan, with
Mother caring for the Children on alternate weekends and all Thursday evenings. Mother
timely appealed.
II. Issues Presented
Mother presents two issues on appeal, which we restate as follows:
1. Whether the trial court erred by finding, by a preponderance of the evidence,
that Mother’s pattern of behavior constituted a material change in
circumstance since entry of the parties’ previous permanent parenting plan.
2. Whether the trial court erred by finding that it was in the Children’s best
interest to modify the permanent parenting plan and designate Father as the
primary residential parent with sole decision-making authority.
III. Standard of Review
We review a non-jury case de novo upon the record, with a presumption of correctness
as to the findings of fact unless the preponderance of the evidence is otherwise. See Tenn.
R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000). We review questions
of law de novo with no presumption of correctness. Bowden, 27 S.W.3d at 916 (citing Myint
v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)). The trial court’s determinations
regarding witness credibility are entitled to great weight on appeal and shall not be disturbed
absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835,
838 (Tenn. 2002).
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IV. Material Change in Circumstance
Mother contends that the trial court erred by finding that her behavior constituted a
material change in circumstance since entry of the June 2008 permanent parenting plan. She
argues specifically that the trial court erred by finding that (1) her past involvement with
G.G. was indicative of poor decision-making on her part, (2) there were indications of
excessive alcohol and drug use on her part, and (3) she had demonstrated an inability to make
sound decisions on behalf of the Children. Father contends that the trial court carefully
weighed all of the testimony and other evidence to find that a pattern of behavior exhibited
by Mother since entry of the June 2008 parenting plan had affected the Children so as to
constitute a material change in circumstance. Upon our careful review, we agree with Father
on this issue.
At the time of a divorce when at least one minor child is involved, as occurred in this
case, the trial court must “make a custody determination” “on the basis of the best interest
of the child.” See Tenn. Code Ann. 36-6-106(a) (Supp. 2013) (delineating factors the court
shall consider when taking into account the child’s best interest). Because Father in his
petition to modify the permanent parenting plan requested that he be named the primary
residential parent rather than Mother, this action is considered one for modification of
“custody.” See Armbrister v. Armbrister, 414 S.W.3d 685, 703 (Tenn. 2013) (comparing the
standard for an action to modify custody to the standard for an action to modify only a
residential parenting schedule). Upon a petition to modify custody from one parent to the
other parent, “the ‘threshold issue’ is whether a material change in circumstance has occurred
after the initial custody determination.” See Kendrick v. Shoemake, 90 S.W.3d 566, 570
(Tenn. 2002) (quoting Blair v. Badenhope, 77 S.W.3d 137, 150 (Tenn. 2002)). Upon a trial
court’s finding that a material change in circumstance affecting the children has occurred,
“it must then be determined whether the modification is in the child[ren]’s best interests.”
Kendrick, 90 S.W.3d at 570 (citing Tenn. Code Ann. § 36-6-106); see generally Boyer v.
Heimermann, 238 S.W.3d 249, 255 (Tenn. Ct. App. 2007) (“In approaching questions of
custody and visitation, the needs of the children are paramount; the desires of the parents are
secondary.”).
Regarding the standard a petitioning parent must meet to prove a material change in
circumstance sufficient for consideration of whether custody modification is in the best
interest of the child, Tennessee Code Annotated § 36-6-101(a)(2)(B) (2014) provides in
relevant part:
(B) If the issue before the court is a modification of the court’s prior decree
pertaining to custody, the petitioner must prove by a preponderance of
the evidence a material change in circumstance. A material change of
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circumstance does not require a showing of substantial risk of harm to
the child. A material change of circumstance may include, but is not
limited to, failures to adhere to the parenting plan or an order of
custody and visitation or circumstances that make the parenting plan no
longer in the best interest of the child.
(i) In each contested case, the court shall make such a finding as to
the reason and the facts that constitute the basis for the custody
determination.
See also Armbrister, 414 S.W.3d at 703.
In finding that a material change in circumstance had occurred since entry of the June
2008 permanent parenting plan, the trial court in its final judgment stated the following in
pertinent part:
The court finds from the preponderance of all the evidence in the case
that [G.G.] was the victim of a domestic assault upon his person by Mother as
he initially alleged in his arrest complaint.
The court finds that [G.G.’s] denials based upon loss of his memory are
not credible and are the product of Mother’s influence upon him after her
arrest.
The physical evidence of the bite marks, abrasions and scratches upon
his person are not denied by [G.G.] to have occurred. He has testified he was
sore all over after the incident, so much so, that he sought emergency medical
care the evening of July 23, 2012.
The court finds, as the court previously found, the testimony of Officer
Julius Porter is believed over any conflicting account and over any denial
testified to by Mother or by [G.G.].
Likewise the testimony of Deputy Sheriff David Harper is believed over
any conflicting account and over any denial testified to by [G.G].
Mother admits that on July 23, 2012 she and [G.G.] argued over her
seeing other men, that her 3-year-old son may have bitten [G.G.] in an effort
to defend her during their argument, and that she mixed alcohol with her
prescription drugs that day.
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Mother admits that following her arrest she continued to see [G.G.] for
the purpose of influencing his testimony and encouraging him to disavow the
facts he alleged in his sworn arrest complaint.
Mother’s denial of the facts alleged in the domestic assault charge are
not believed. Mother changed her testimony while on the witness stand in the
final hearing. At first she blamed Father for her arrest then she said she took
personal responsibility. She first blamed Father for causing her arrest to be
reported in the local newspaper claiming that she had received information
from someone working at the newspaper. Then Mother admitted she knew of
no such person and she received no such information from any employee of
the newspaper.
Mother admitted that her complaint to the T.B.I. alleging that [O]fficer
Porter had spoken with Father while she was being transported in the patrol car
and asked if Father wanted her arrested was false and did not happen. Mother
repeatedly has claimed Father is responsible for getting her fired but she has
no proof of this and at trial said she felt like he was the reason the school board
would not drop its termination case against her.
The court finds that Mother has failed to address her
hurt/anger/damaged trust/fearfulness in her first marriage, issues stemming
from the divorce, that caused her (though unintentionally according to Dr. Roy
Smith) to raise false reports of sexual abuse against Father;3 that since the
divorce she has not dealt with the issues that the court ordered her to deal with
through counseling; and that she has entered into a series of relationships with
men that contribute to her inability or unwillingness to address those issues -
something Dr. Smith warned her not to do.
At the same time Mother has continually combined alcohol
consumption with her prescription medication with the resulting effect upon
Mother and her children of causing her to sleep while the children are in her
care as testified to by [J.S.M.]. Further corroboration of this fact comes from
3
In the original complaint for divorce, Mother alleged that the parties’ daughter, then two and one-
half years old, had reported “inappropriate touching” by Father. The trial court temporarily terminated all
unsupervised visitation with the daughter by Father pending an investigation and psychological evaluation.
Upon the findings and recommendation of psychologist Dr. Roy Smith, the trial court concluded in its
Memorandum Opinion incorporated into the Judgment of Divorce that the report of sexual abuse against
Father was unfounded, although in accordance with Dr. Smith’s findings, the court did not find Mother’s
allegation to have been intentionally false.
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[G.G.]. [G.G.] admitted that he had called Eric Elliott complaining to him of
similar conduct by Mother in June of 2012. [G.G.] told Mr. Elliott that
Mother’s conduct caused [G.G.] concern for the children.
...
As previously stated, the above findings by the court and the record as
a whole support the court’s entry of the Temporary Order of September 21,
2012. Mother was in need of the counseling, drug assessment and
psychological evaluation the court ordered September 21, 2012 and she
remains in need of these today[.] Although Mother has submitted reports by
experts on other issues, the reports reveal that Mother’s expert proof in this
matter fails to follow through on the earlier orders of the court that were based
upon court findings and court orders that accepted Dr. Roy Smith’s
recommendations. The expert reports Mother has offered are of little help to
the court. The court cannot rely on assurances of Mother and her experts
because the reports show Mother deprived the reporting experts of accurate
history of Mother’s conduct. For instance, Mother reported to her expert that
she drank only two glasses of wine as often as once per month; whereas, the
proof shows at least twice weekly use while [J.S.M.] observed her. But, most
glaringly, Mother has failed to raise with her experts the matter of her
hurt/anger/damaged trust/fearfulness in her first marriage and the findings and
recommendations of Dr. Roy Smith.
The court find[s] that Mother’s false allegations against Father
continue because she has not dealt with her issues from her marriage to Father
as the court ordered her to do in the final decree of divorce.
...
The above findings show a pattern of behavior by Mother which
constitutes a material change of circumstance warranting consideration of a
change of custody.
Mother’s lack of grasp upon reality, her poor decision-making, her
misuse of alcohol and prescription medication, and her lies against Father are
not one time episodes. The court finds they are patterns of misbehavior.
Mother’s conduct has affected the children in a meaningful way. The
DVD of April 7, 2012 shows the [effect] that Mother’s accusations against
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Father have upon the children.4 The following conduct of Mother has also
affected her children in a meaningful way:
1. Mother has failed to follow the order of the court to address her
hurt/anger/damaged trust/fearfulness in her first marriage issues
which at time of divorce was instrumental in the false report of
F ather’s im proper touching his daughter. H er
hurt/anger/damaged trust/fearfulness in her first marriage issues
probably contributed to Mother’s April 2012 outburst (Exhibit
4) and has also contributed to Mother’s false report to the T.B.I.
(Exhibit 6).
2. Mother has habitually mixed her prescription medications with
alcohol. She began a downward spiral in early 2012. [G.G.], an
R.N., may have supplied her with other medications during this
time (Spring 2012), at a time when peer observations of her
behavior at the school where she worked eventually resulted in
termination of her employment. Mother remains unemployed
but has appealed the school board’s action to Chancery Court.
3. Mother did not do all she could between July 23rd 2012 and
September 14, 2012 to keep [G.G.] away from herself or her
children because she had to be nice to him so he would not
testify against her in the Domestic Assault case. She testified
she did not want him around, yet, she refused to obtain an order
of protection against him because of the Domestic Violence
charge he had against her.
4. Mother has falsely accused father of responsibility for her arrest
and her termination from employment as a school teacher.
Mother did not retract the false charges against Father she made
to the T.B.I. until she did so on the witness stand August 6, 2013
over a year after she made them.
5. It is an inescapable conclusion that Mother’s poisonous attitude
toward Father revealed by her habitual lies about him are
4
This DVD, presented at trial, was recorded by Father with his cellular telephone at the door of
Mother’s residence and contained footage of Mother shouting repeatedly to the Children that Father “is
lying” and is “a manipulator.”
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emotionally damaging to the children as shown on Exhibit 4, the
DVD of her rant against Father in front of the children.
We conclude that the evidence does not preponderate against the trial court’s findings.
Mother asserts that the trial court was offended by Mother’s relationship with G.G. and
improperly sought to “punish” Mother for the July 23, 2012 incident by determining that a
material change in circumstance had occurred. See Boyer, 238 S.W.3d at 255 (“Custody or
visitation should never be used to punish parents for their human frailties and past mis-steps
or conversely as a reward for parents.”). Contrary to Mother’s assertion, the trial court
specifically found that Mother had exhibited “patterns of misbehavior” that were “not one
time episodes.” Cf. Beckham v. Beckham, No. M2007-02863-COA-R3-CV, 2009 WL
690692 at *12 (Tenn. Ct. App. Mar. 13, 2009) (concluding that “an apparently isolated
episode of poor judgment” regarding the children’s safety on four-wheelers was “insufficient
to establish a material change of circumstance.”).
Mother’s relationship with G.G. was indicative of these behavior patterns in that it led
to what the court found to be a domestic assault in Mother’s home and a lack of credibility
on the witness stand as to both G.G. and Mother. Mother did not dispute that the relationship
with G.G. was an unhealthy one, and yet she admitted to continuing the relationship at least
for a short time. Upon our review of the record, we conclude that the trial court properly
considered and discredited G.G.’s testimony. Indeed, the record clearly indicates that G.G.’s
testimony was evasive, contradictory, and unhelpful to the court. As Mother notes, G.G. was
eventually prosecuted for filing a false police report in regard to the July 23, 2012 incident.
Mother’s argument fails to recognize, however, that her decision to associate with G.G., to
engage in volatile behavior with G.G. at her home with her three-year-old child present, and
to continue an intimate relationship with G.G. for however short a time following the July
23, 2012 incident are, as the trial court found, indicative of a pattern of “poor decision-
making” that ultimately affected her parenting of the Children.
As to the trial court’s finding regarding Mother’s “misuse of alcohol and prescription
medication,” Mother asserts that the trial court failed to properly consider the alcohol and
drug assessment and negative hair follicle drug screen Mother presented at trial. In the
alcohol and drug assessment report, dated August 28, 2012, the counselor/assessor concluded
that the assessment results indicated “a low probability of [Mother’s] having a substance
dependence disorder.” The counselor recommended, however, that “due to the nature of the
medications she is being prescribed,” Mother “avoid consuming alcohol because of possible
negative interactions with her prescription medications.” In addition, Mother presented one
hair follicle drug screen, performed on a sample collected September 19, 2012, with negative
results for the five major controlled drug classes screened.
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Conversely, Mother acknowledged at trial that “in the past, she would drink a glass
of wine at dinner and then take an Ambien later in the evening.” J.S.M. testified that when
he was with Mother in the spring of 2012, she mixed prescription drugs and alcohol on a
“daily/weekly basis” and took medication in front of the Children. According to Mother’s
testimony, the July 23, 2012 incident with G.G. began with their trip to buy paint as well as
“skinny wine” and “skinny margaritas” before returning to Mother’s home. In making its
determination regarding Mother’s use of alcohol with prescription medication, the trial court
found that it could not rely on Mother’s alcohol and drug assessment because Mother had
self-reported to the counselor a lower use of alcohol than the other evidence would indicate.
Moreover, the trial court further found that Mother had exhibited a pattern of behavior
that demonstrated a “poisonous attitude” toward Father that had affected the Children. See,
e.g., Killion v. Sweat, No. E1999-02634-COA-R3-CV, 2000 WL 1424809 at *3 (Tenn. Ct.
App. Sept. 21, 2000) (“We find that a change of custody is also warranted by the disparaging
remarks [about the father] made by Mother to the child . . . .”). Mother asserts that the trial
court erred by relying on a finding made during the divorce proceeding that Mother had
falsely accused Father of sexually abusing the parties’ daughter. However, the trial court
noted this finding only as part of what the court found had become a pattern of Mother’s
behavior toward Father. Father presented a TBI complaint form documenting Mother’s
telephone call to TBI on August 2, 2012, a few days after the July 23, 2012 incident, in which
she alleged that Officer Porter had called Father en route to the jail with Mother to ask “if
he wanted her charged.” The complaint to TBI further alleged that Father “intervened” and
“prevented” the district attorney from dropping the charge against Mother at that time.
Testifying in the instant action, both Officer Porter and Father denied that any such
interference on Father’s part had taken place. Mother then admitted at trial that the
allegations in her complaint to TBI were unfounded.
Mother had also characterized her employment termination from the school system
to the local newspaper as orchestrated by Father. Father testified that following news
coverage of Mother’s employment termination, the parties’ son asked him at one point if he
were responsible for Mother’s losing her job. Mother admitted that contrary to her prior
assertion, no one on the newspaper staff had told her that Father or his counsel supplied the
newspaper with the story of her arrest. Father also presented an audiovisual recording, taken
with his cellular telephone at the door of Mother’s residence, that contains footage of Mother
shouting repeatedly to the Children that Father “is lying” and is “a manipulator.” The
parties’ son can be heard on the recording saying, “No, he’s not,” while the parties’ daughter
stands in the doorway listening.
Upon our careful and thorough review of the record, we determine that the evidence
does not preponderate against the trial court’s finding that Mother’s pattern of behavior since
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entry of the June 2008 permanent parenting plan constituted a material change in
circumstance affecting the Children.
V. Best Interest of Children
Mother contends that the trial court erred by failing to consider all relevant factors
when it determined that a custody modification was in the best interest of the Children.
Father contends that the trial court, upon finding a material change in circumstance, properly
applied the statutory factors to determine whether a modification would be in the best interest
of the Children and what that modification should be. We conclude that the evidence does
not preponderate against the trial court’s finding that it was in the best interest of the
Children to modify the permanent parenting plan so as to designate Father as the primary
residential parent with sole decision-making authority.
Having found that a material change in circumstance had occurred, the trial court was
then required to apply the statutory “best interest” factors enumerated in Tennessee Code
Annotated § 36-6-106 to determine whether a change in custody was in the best interest of
the Children. See Kendrick, 90 S.W.3d at 570; Cranston v. Combs, 106 S.W.3d 641, 644
(Tenn. Ct. App. 2003). The version of Tennessee Code Annotated §36-6-106(a) (Supp.
2013)5 in effect at the time the instant action was filed provided in relevant part:
(a) In a suit for annulment, divorce, separate maintenance, or in any other
proceeding requiring the court to make a custody determination
regarding a minor child, the determination shall be made on the basis
of the best interest of the child. In taking into account the child’s best
interest, the court shall order a custody arrangement that permits both
parents to enjoy the maximum participation possible in the life of the
child consistent with the factors set out in subdivisions (a)(1)-(10), the
location of the residences of the parents, the child’s need for stability
and all other relevant factors. The court shall consider all relevant
factors, including the following, where applicable:
5
The General Assembly has amended Tennessee Code Annotated § 36-6-106(a) (2014), effective
July 1, 2014, to enumerate fifteen factors for the trial court’s consideration when making a custody
determination. See 2014 Tenn. Pub. Acts Ch. 617 (S.B. 1488). According to the preamble of Public Acts
Chapter 617, the legislature’s intent in amending the statute was to alleviate inconsistency and confusion
caused by “different factors pertaining to judicial review of custodial arrangements and the establishment
of residential schedules for minor children” that “differ[ed] slightly in their specifics,” particularly among
subsections 36-6-106(a), 36-6-404(b), and 36-6-108. See id. Because the instant action was commenced on
July 27, 2012, the version of the statute in effect at that time controls our review of the trial court’s analysis.
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(1) The love, affection and emotional ties existing between
the parents or caregivers and the child;
(2) The disposition of the parents or caregivers to provide
the child with food, clothing, medical care, education and
other necessary care and the degree to which a parent or
caregiver has been the primary caregiver;
(3) The importance of continuity in the child’s life and the
length of time the child has lived in a stable, satisfactory
environment; . . .
(4) The stability of the family unit of the parents or
caregivers;
(5) The mental and physical health of the parents or
caregivers;
(6) The home, school and community record of the child;
(7)(A) The reasonable preference of the child, if twelve
(12) years of age or older;
(B) The court may hear the preference of a younger
child on request. The preferences of older
children should normally be given greater weight
than those of younger children;
(8) Evidence of physical or emotional abuse to the child, to
the other parent or to any other person; . . .
(9) The character and behavior of any other person who
resides in or frequents the home of a parent or caregiver
and the person’s interactions with the child; and
(10) 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
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and both of the child’s parents, 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.
Similarly, for “[a]ny final decree or decree of modification in an action for absolute
divorce, legal separation, annulment, or separate maintenance involving a minor child,”
Tennessee Code Annotated §36-6-404(a) (2014) provides that an appropriate parenting plan
shall:
(1) Provide for the child’s changing needs as the child grows and matures, in
a way that minimizes the need for further modifications to the permanent
parenting plan;
(2) Establish the authority and responsibilities of each parent with respect to
the child, consistent with the criteria in this part;
(3) Minimize the child’s exposure to harmful parental conflict;
(4) Provide for a process for dispute resolution, before court action, unless
precluded or limited by § 36-6-406; . . .
(5) Allocate decision-making authority to one (1) or both parties regarding the
child’s education, health care, extracurricular activities, and religious
upbringing. The parties may incorporate an agreement related to the care and
growth of the child in these specified areas, or in other areas, into their plan,
consistent with the criteria in this part. Regardless of the allocation of decision
making in the parenting plan, the parties may agree that either parent may
make emergency decisions affecting the health or safety of the child;
(6) Provide that each parent may make the day-to-day decisions regarding the
care of the child while the child is residing with that parent;
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(7) Provide that when mutual decision making is designated but cannot be
achieved, the parties shall make a good-faith effort to resolve the issue through
the appropriate dispute resolution process, subject to the exception set forth in
subdivision (a)(4)(F);
(8) Require the obligor to report annually on a date certain to the obligee, and
the department of human services or its contractor in Title IV-D cases, on a
form provided by the court, the obligor’s income as defined by the child
support guidelines and related provisions contained in chapter 5 of this title;
and
(9) Specify that if the driver license of a parent is currently expired, canceled,
suspended or revoked or if the parent does not possess a valid driver license
for any other reason, the parent shall make acceptable transportation
arrangements as may be necessary to protect and ensure the health, safety and
welfare of the child when such child is in the custody of such parent.
Regarding residential provisions for each child, the version of Tennessee Code Annotated
§ 36-4-404 (2010) applicable to the instant action 6 further provided:
(b) Any permanent parenting plan shall include a residential schedule as
defined in § 36-6-402. The court shall make residential provisions for each
child, consistent with the child’s developmental level and the family’s social
and economic circumstances, which encourage each parent to maintain a
loving, stable, and nurturing relationship with the child. The child’s residential
schedule shall be consistent with this part. If the limitations of § 36-6-406 are
not dispositive of the child’s residential schedule, the court shall consider the
following factors:
(1) The parent’s ability to instruct, inspire, and encourage the
child to prepare for a life of service, and to compete successfully
in the society that the child faces as an adult;
6
The General Assembly has also amended Tennessee Code Annotated § 36-6-404(b) (2014),
effective July 1, 2014, in keeping with the companion amendment to Tennessee Code Annotated § 36-6-
106(a) described in the previous note. See 2014 Tenn. Pub. Acts Ch. 617 (S.B. 1488). Tennessee Code
Annotated § 36-4-404(b) now states, “If the limitations of § 36-6-406 are not dispositive of the child’s
residential schedule, the court shall consider the factors found in § 36-6-106(a)(1)-(15),” referring to the
fifteen best interest factors now enumerated in § 36-6-106(a). See id. As previously noted, the version of
the statute in effect at the time this action was commenced on July 27, 2012, controls our review of the trial
court’s analysis.
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(2) The relative strength, nature, and stability of the child’s
relationship with each parent, including whether a parent has
taken greater responsibility for performing parenting
responsibilities relating to the daily needs of the child;
(3) The willingness and ability of each of the parents to facilitate
and encourage a close and continuing parent-child relationship
between the child and the other parent, consistent with the best
interests of the child;
(4) Willful refusal to attend a court-ordered parent education
seminar may be considered by the court as evidence of that
parent’s lack of good faith in these proceedings;
(5) The disposition of each parent to provide the child with food,
clothing, medical care, education and other necessary care;
(6) 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;
(7) The love, affection, and emotional ties existing between each
parent and the child;
(8) The emotional needs and developmental level of the child;
(9) The character and physical and emotional fitness of each
parent as it relates to each parent’s ability to parent or the
welfare of the child;
(10) The child’s interaction and interrelationships with siblings
and with significant adults, as well as the child’s involvement
with the child’s physical surroundings, school, or other
significant activities;
(11) The importance of continuity in the child’s life and the
length of time the child has lived in a stable, satisfactory
environment;
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(12) Evidence of physical or emotional abuse to the child, to the
other parent or to any other person;
(13) 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;
(14) 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;
(15) Each parent’s employment schedule, and the court may
make accommodations consistent with those schedules; and
(16) Any other factors deemed relevant by the court.
In considering the applicable statutory factors regarding the best interest of the
Children, the trial court in its final judgment stated the following in pertinent part:
The record before the court shows Father is more capable of meeting
“parental responsibilities” than Mother and the court so finds.
The court specifically finds that the following T.C.A. 36-6-106,
children’s best interest factors, support a change of custody to Father.
(4) Instability of Mother and her family unit;
(5) Mother’s emotional ill health;
(8) Mother’s emotional abuse to the child and to the other parent;
(9) The bad character and erratic behavior of [G.G.] who frequented
Mother’s home and who Mother allowed to interact with her
children;
(10) Father’s greater potential for future performance of parenting
responsibilities, including his willingness and ability to facilitate
and encourage a close and continuing parent-child relationship
between the children and Father and Mother consistent with the
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best interests of the child; his greater ability to provide for the
children’s emotional care and stability; his greater ability to
supervise the children so as to protect their emotional,
intellectual, moral and spiritual development; his greater ability
to provide encouragement and protection of the children’s
intellectual and moral development; his greater ability to assist
the children in developing and maintaining appropriate
interpersonal relationships; and his greater ability to exercise
appropriate judgment in matters relating to the welfare of the
children.
Mother argues specifically that the court failed to consider (1) the veracity of Father’s
allegations in his petition for modification, (2) Mother’s alcohol and drug assessment and
negative alcohol and drug screen, and (3) the therapeutic counseling in which Mother
participated during the year prior to the final hearing. We disagree. The trial court issued
a sixty-five-page final order summarizing the factual and procedural history of this action,
the evidence presented at trial, and a detailed description of its analysis. The best interest
analysis required the trial court to determine the “comparative fitness” of Father and Mother
as custodial parents. See, e.g., Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996)
(“[A]lthough the evidence may not have shown that Ms. Gaskill was an unfit mother, it may,
and in this case does, indicate she is comparatively less fit than Mr. Gaskill to have custody
of the parties’ daughter.”).
As this Court has recently explained:
“Fitness for custodial responsibilities is largely a comparative matter. No
human being is deemed perfect, hence no human can be deemed a perfectly fit
custodian. Necessarily, therefore, the courts must determine which of two or
more available custodians is more or less fit than others.” Bah [v. Bah], 668
S.W.2d [663,] 665-66 [(Tenn. Ct. App. 1983)] (quoting Edwards v. Edwards,
501 S.W.2d 283, 290-91 (Tenn. Ct. App. 1973)). “There are literally
thousands of things that must be taken into consideration” in making a
comparative fitness determination. Bah, 668 S.W.2d at 666.
In the Matter of T.R.Y., No. M2012-01343-COA-R3-JV, 2014 WL 586046 at *13 (Tenn. Ct.
App. Feb. 12, 2014). In the instant action, the court’s findings demonstrate that it conducted
such a comparative fitness analysis, focusing inter alia, on the five factors it found relevant
among the ten factors provided in Tennessee Code Annotated § 36-6-106(a).
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As to Father’s allegations regarding the incident involving Mother’s arrest and
relationship with G.G., the trial court was well aware that G.G. had recanted his statement
made to police officers and that the criminal charge of aggravated domestic violence against
Mother had been dismissed. The court in the portion of its final order denying Mother’s
motion to dismiss the complaint specifically discredited the testimony of Mother and G.G.
regarding the July 23, 2012 incident, except as it corroborated Corporal Harper’s and Officer
Porter’s testimonies. The court stated in pertinent part:
In this case the court is dealing with two witnesses the court finds lied
about important facts in the case. [G.G.] and Mother lied about Mother’s
domestic violence that occurred on July 23, 2012. Mother willingly used her
corporeal assets to procure from [G.G.] trial testimony that differed from his
earlier sworn affidavit. Mother has also admitted she lied in her complaint
against Father to the T.B.I.
...
The court has closely scrutinized the testimony of [G.G.] and Mother
and finds that although they willfully lied about some important facts, each of
them gave testimony that corroborated the truthful witnesses’ testimony in the
case, in particular the testimony of the, on scene, law enforcement officers
which the court fully credits.
We stress that the trial court’s findings as to witness credibility are afforded great
weight on appeal. See Gaskill, 936 S.W.2d at 633-34 (“Trial courts are normally in the best
position to judge the credibility of the witnesses since they have seen and heard the witnesses
testify. Thus, a trial court’s determination of credibility is entitled to great weight in this
court.”) (internal citations omitted). The court’s findings regarding Mother’s overall
credibility; relationship with G.G., including the abusive July 23, 2012 incident and Mother’s
decision to renew intimacy following that incident; and admittedly unfounded statements to
TBI and the local newspaper all contributed to the court’s findings that Mother was less
stable in her family unit than Father (factor 4), emotionally in ill health as compared to Father
(factor 5), emotionally abusive to the Children and Father (factor 8), willing to expose the
Children to someone of “bad character” (factor 9), and showed lesser potential for future
performance of parenting responsibilities (factor 10). See Tenn. Code Ann. § 36-6-106(a).
Moreover, “[a] parent’s honesty reflects on his or her fitness to be a good custodian.”
Gaskill, 936 S.W.2d at 634.
As explained previously, the trial court included Mother’s presentation of her alcohol
and drug assessment and negative hair follicle screen in its findings, but the court further
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found that it could not rely on Mother’s self-reporting of her substance use to assessors.
Mother presented a psychological evaluation, completed on March 13, 2013, demonstrating
compliance with the court’s previous order that she undergo a psychological evaluation. The
evaluator did not testify, however, and supporting testing materials were not admitted at trial.
Mother testified at the final hearing that she had been seeing a therapeutic counselor for
approximately a year and that it had helped her to “talk to someone.” The trial court,
however, found that Mother had not adequately addressed to her evaluators or in counseling
the issues first identified by a psychologist evaluating the family at the time of the divorce,
Dr. Roy Smith, regarding Mother’s “hurt/anger/damaged trust/fearfulness in her first
marriage.”
When questioned at trial regarding why she had attempted to blame Father for the
termination of her employment, Mother responded as follows:
Anything that has happened this whole time is my fault. I totally take
responsibility for everything that has happened. I’m not blaming [Father]; I’m
not blaming anyone else. It’s all my fault.
Has it been a little bit harder on me because of [Father]? Probably, but
it is all my fault. I take full responsibility for it. I have made huge mistakes.
I have paid dearly.
I have lost my job. I have lost my children, and it has been a nightmare.
But it is all my fault, and I am not blaming [Father] and I am not blaming
anyone else. It’s my fault. I made a huge mistake, and I take full
responsibility for it.
While Mother’s alcohol and drug assessment, negative hair follicle screen, participation in
counseling, and willingness to accept responsibility may well be positive indicators of her
willingness to correct the pattern of behavior that led the trial court to find a material change
in circumstance, we determine that the evidence does not preponderate against the trial
court’s finding that consideration of these factors demonstrated Mother to be comparatively
less fit to parent than Father.
We note that the remaining best interest factors contained in Tennessee Code
Annotated § 36-6-106(a) were either inapplicable or weighed equally in favor of both parents
in this case. Specifically as to factor 6, Mother argues that because the Children excelled in
academics, citizenship, and sports while in her care, she should be viewed as the more fit
parent. As the trial court noted, however, the record demonstrates that the Children
continued to excel while in Father’s care also, and both parents commendably continued to
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encourage such success on the Children’s part. The record also leaves no question that both
parents have maintained a loving bond with the Children (factor 1). See Tenn. Code Ann.
§ 36-6-106(a)(1). The parties’ son was of an age at trial when the court may have considered
his custody preference, but it is undisputed that the son expressed a desire not to testify
(factor 7). It is also undisputed that both parents have provided necessities to the Children
when the Children were in their care (factor 2). See id. at (2). As for continuity of care,
Mother was the Children’s primary caregiver until entry of the ex parte temporary order in
July 2012. By the time of the final hearing in August 2013, the Children had been living
primarily with Father, his wife, and Father’s two stepchildren for over a year and would have
had the continuity of their living situation interrupted again by a return to Mother’s primary
care. See id. at (2), (3).
Finally, in designating Father as the primary residential parent and as the parent with
sole decision-making authority, the trial court in its final judgment found that several factors
contained within Tennessee Code Annotated § 36-6-406(d) (2014) were applicable to limit
Mother’s co-parenting time and preclude her decision-making ability. See Melvin v. Melvin,
415 S.W.3d 847, 851 (Tenn. Ct. App. 2011) (affirming the trial court’s application of the
statutory limiting factors). Tennessee Code Annotated § 36-6-406(d) provides:
(d) A parent’s involvement or conduct may have an adverse effect on the
child’s best interest, and the court may preclude or limit any provisions
of a parenting plan, if any of the following limiting factors are found to
exist after a hearing:
(1) A parent’s neglect or substantial nonperformance of parenting
responsibilities;
(2) An emotional or physical impairment that interferes with the
parent’s performance of parenting responsibilities as defined in
§ 36-6-402;
(3) An impairment resulting from drug, alcohol, or other substance
abuse that interferes with the performance of parenting
responsibilities;
(4) The absence or substantial impairment of emotional ties
between the parent and the child;
(5) The abusive use of conflict by the parent that creates the danger
of damage to the child’s psychological development;
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(6) A parent has withheld from the other parent access to the child
for a protracted period without good cause;
(7) A parent’s criminal convictions as they relate to such parent’s
ability to parent or to the welfare of the child; or
(8) Such other factors or conduct as the court expressly finds
adverse to the best interests of the child.
Specifically, the trial court stated the following in its final judgment regarding its
application of Tennessee Code Annotated § 36-6-406(d) limiting factors:
The court finds that T.C.A. 36-6-406(d) factors in which the court may
limit provisions of a parenting plan also apply. The court finds these factors
are:
(2) Mother’s emotional impairment that causes her to make false
allegations against Father also interferes with her ability to
encourage the children’s moral development and interferes with
her ability to assist the children in developing and maintaining
appropriate interpersonal relationships (See 36-6-402(2)(C) and
(D);
(3) Mother’s impairment from misuse of drugs and alcohol by using
them together also interferes with her ability to “make decisions
and perform duties necessary for the care and growth of the
children.” (See 36-6-402);
(5) Mother’s pattern of engaging in the abusive use of parental
conflict is such that she has created the danger of damage to the
children’s psychological development;
(8) Mother’s failure to tell the truth, and, in this case, her false
accusations against Father to the children and to his employer
and the public print media have exposed the children to needless
injury and harm to which children are most vulnerable. Mother
has not hesitated to put her children in [harm’s] way of her
accusations against Father in these instances and as shown on
Exhibit 4.
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Upon our careful and thorough review of the record, we determine that the trial court
carefully considered the applicable statutory factors to place the children “‘in an environment
that will best serve [their] physical and emotional needs.’” See In the Matter of T.R.Y., 2014
WL 586046 at *16 (quoting In re T.C.D., 261 S.W.3d 734, 742-43 (Tenn. Ct. App. 2007)).
We affirm the trial court’s designation of Father as the primary residential parent with sole
decision-making authority. We have also reviewed the permanent parenting plan order
entered by the trial court, detailing Mother’s residential co-parenting time, and we affirm it
in all respects.
VI. Conclusion
For the reasons stated above, we affirm the judgment of the trial court. This case is
remanded to the trial court for enforcement of the judgment and collection of costs below.
Costs on appeal are taxed to the appellant, Susan Ellen Calfee Muhonen.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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