Amanda N. Burnett v. Aaron L. Burnett

12/07/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 16, 2022 Session
AMANDA N. BURNETT v. AARON L. BURNETT
Appeal from the Chancery Court for Anderson County
No. 18CH422 M. Nicole Cantrell, Chancellor
No. E2021-00900-COA-R3-CV
In this divorce action, Aaron Burnett (“Husband”) challenges the trial court’s classification
and division of the parties’ assets, award of alimony in solido to Amanda Burnett (“Wife”),
and permanent parenting plan (“PPP”). Husband also argues that the trial court erred in
finding him in criminal contempt during the divorce trial. The PPP ordered by the court
states that Husband is granted 90 days of parenting time per year, but the more specific
day-to-day schedule provided in the plan allows for only about 63 days. Wife concedes
that the PPP is inconsistent and also that the trial court improperly found Husband in
contempt. Consequently, we vacate the day-to-day schedule in the PPP and remand for the
trial court to craft a schedule that allows Husband 90 days, and we reverse the contempt
finding. The trial court’s judgment is affirmed in all other respects.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed in Part and Vacated in Part; Case Remanded
KRISTI M. DAVIS, J., delivered the opinion of the Court, in which D. MICHAEL SWINEY,
C.J., and THOMAS R. FRIERSON, II, J., joined.
Patti Jane Lay, Knoxville, Tennessee, for appellant, Aaron Burnett.
Katheryn M. Ogle and Carolyn L. Gilliam, Knoxville, Tennessee, for appellee, Amanda
Burnett.
OPINION
I. BACKGROUND
The parties were married on May 30, 2010. They have three children: Carolina
(born 1/6/2012), and twins Piper and Paxton (born 8/23/2013). Wife filed this action for
divorce on June 25, 2018. The parties submitted a temporary parenting schedule agreement
whereby Wife had custody and Husband parenting time “on his days off, up to two nights
per week.” This was the schedule followed by the parties until the trial court entered its
final decree following a three-day trial that took place in August and October of 2020. The
trial court granted Wife the divorce on the grounds of inappropriate marital conduct, citing
Husband’s cocaine use, extramarital sexual relationship, and verbal abuse of Wife.
During the time between the filing of the divorce complaint and trial, Husband
stopped paying the mortgage on the marital residence and certain other family bills, and he
declared bankruptcy. The trial court divided the assets of the marital estate, valued at
$50,456.72, as follows: Husband $21,671.36 (43%); Wife $28,785.36 (57%). Marital debt
was assigned to Husband in the amount of $4,300 and Wife $1,280. Husband received
38.7% of the net value of the marital estate, and Wife 61.3%. The trial court found “neither
party has any separate property of substantial value.” Each party bought one significant
item after separation – Husband a vehicle and Wife some furniture – and the court classified
these assets as separate and assigned the debt for each to the party who bought it. The court
found Husband guilty of dissipation of the marital estate by burning some personal items
and selling some and giving some away without Wife’s permission.
Regarding spousal support, the trial court found Wife to be economically
disadvantaged. Wife was a stay-at-home parent and homemaker since 2013. She worked
part-time as a teacher of English as a second language since 2017. Wife filed an affidavit
showing income of $1,592 per month and expenses of $2,979 per month, a $1,387 deficit.
Husband worked full-time for the US Postal Service. His affidavit showed income of
$3,772 per month. The trial court found that his statement of expenses was inaccurate
because he was living with his girlfriend and sharing expenses.
The court found that “the Wife was not given access to the parties’ marital funds
and that she had difficulty even providing sufficient groceries and necessities to provide
for the children even though [Husband] was working because she did not have access to
these funds.” Because Wife was living with a third person, her father, and did not rebut
the statutory presumption that she did not need transitional alimony, the trial court did not
award any. The court did award alimony in solido to Wife in the form of her attorney’s
fees ($9,840) and litigation costs ($1,640.70), totaling $11,480.70.
The trial court approved the PPP submitted by Wife, which designates her as
primary residential parent with decision-making authority, and grants Husband 90 days per
year of co-parenting time. However, as already noted and will be discussed further below,
the day-to-day schedule specified by the PPP only provides for about 63 days per year. The
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trial court awarded child support to Wife in accordance with the guidelines. The child
support award is not an issue on appeal.
The trial court found Husband guilty of one count of criminal contempt, stating that
he “willfully disobeyed this court instruction and commands to not discuss this case with
any of the witness[es] waiting to testify in this matter who were instructed to wait outside
the courtroom . . . During a break, [Husband] was overheard by an officer of the court
discussing the proof of the case with his waiting witness, Lynn Bluder.”
II. ISSUES
Husband timely appealed and raises the following issues:
1. Whether the trial court erred in classifying, valuing, and dividing the parties’ assets
and debts.
2. Whether the trial court erred in awarding spousal support in the form of Wife’s
attorney’s fees and costs as alimony in solido.
3. Whether the trial court erred in entering a permanent parenting plan that provides
substantially less time than what the parties agreed to in their temporary parenting
plan and that grants Wife sole decision-making authority.
4. Whether the trial court erred in finding Husband in contempt for alleged violation
of the sequestration rule.
III. ANALYSIS
A. Classification and Division of Assets
Husband challenges the trial court’s classification and division of assets and debts.
Our Supreme Court has defined the applicable standard of review of issues regarding
property classification and division in divorce proceedings:
The classification of particular property as either separate or marital is a
question of fact to be determined in light of all relevant circumstances. See
Langford v. Langford, 220 Tenn. 600, 421 S.W.2d 632, 634 (1967);
Cutsinger v. Cutsinger, 917 S.W.2d 238, 241 (Tenn. Ct. App. 1995). This
Court gives great weight to a trial court’s decisions regarding the division of
marital assets, and we will not disturb the trial court’s ruling unless the
distribution lacks proper evidentiary support, misapplies statutory
requirements or procedures, or results in some error of law. Keyt v. Keyt,
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244 S.W.3d 321, 327 (Tenn. 2007). As to the trial court’s findings of fact,
“we review the record de novo with a presumption of correctness, and we
must honor those findings unless there is evidence which preponderates to
the contrary.” Id. However, we accord no presumption of correctness to the
trial court’s conclusions of law. Id.Snodgrass v. Snodgrass, 295 S.W.3d 240, 245-46 (Tenn. 2009).
The trial court must classify all of the assets possessed by the divorcing parties as
either separate or marital before equitably dividing the marital estate. Larson-Ball v. Ball,
301 S.W.3d 228, 231 (Tenn. 2010). “Separate property is not part of the marital estate and
is therefore not subject to division.” Id.After classifying and valuing marital property, a trial court must equitably divide it
between the parties. See Tenn. Code Ann. § 36-4-121(a)(1); Luplow v. Luplow, 450
S.W.3d 105, 109 (Tenn. Ct. App. 2014) (citing Miller v. Miller, 81 S.W.3d 771, 775 (Tenn.
Ct. App. 2001)). An equitable division of marital property does not require that the
property be divided equally. Id. at 109-10 (citing Robertson v. Robertson, 76 S.W.3d 337,
341 (Tenn. 2002)). Nor does it require that each party receive a share of every item
classified as marital property. Morton v. Morton, 182 S.W.3d 821, 833-34 (Tenn. Ct. App.
2005) (quoting King v. King, 986 S.W.2d 216, 219 (Tenn. Ct. App. 1998)). According to
Tenn. Code Ann. § 36-4-121(c),
In making equitable division of marital property, the court shall consider all
relevant factors including:
(1) The duration of the marriage;
(2) The age, physical and mental health, vocational skills, employability,
earning capacity, estate, financial liabilities and financial needs of each of
the parties;
(3) The tangible or intangible contribution by one (1) party to the education,
training or increased earning power of the other party;
(4) The relative ability of each party for future acquisitions of capital assets
and income;
(5)(A) The contribution of each party to the acquisition, preservation,
appreciation, depreciation or dissipation of the marital or separate property,
including the contribution of a party to the marriage as homemaker, wage
earner or parent, with the contribution of a party as homemaker or wage
earner to be given the same weight if each party has fulfilled its role;
(B) For purposes of this subdivision (c)(5), dissipation of assets means
wasteful expenditures which reduce the marital property available for
equitable distributions and which are made for a purpose contrary to
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the marriage either before or after a complaint for divorce or legal
separation has been filed.
(6) The value of the separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time the division of
property is to become effective;
(9) The tax consequences to each party . . . ;
(10) In determining the value of an interest in a closely held business or
similar asset, all relevant evidence, . . . .
(11) The amount of social security benefits available to each spouse; and
(12) Such other factors as are necessary to consider the equities between the
parties.1
The trial court has broad discretion in devising an equitable division of marital
property. Flannary v. Flannary, 121 S.W.3d 647, 650 (Tenn. 2003). This Court will not
overturn the trial court’s determination unless “it is inconsistent with the statutory factors
or lacks proper evidentiary support.” Trezevant v. Trezevant, 568 S.W.3d 595, 607 (Tenn.
Ct. App. 2018) (citing Baggett v. Baggett, 422 S.W.3d 537, 543 (Tenn. Ct. App. 2013)).
In the present case the trial court made specific findings regarding each of the above
statutory factors. The court found as follows, in pertinent part:
These parties were married in 2010, making this a 10-year long marriage.
The Wife is 37 years old and the Husband is 36 years old. Both parties are
of sound physical and mental health such that they are both capable of
working. The Wife has a Bachelor’s Degree and has previously been
employed in an afterschool program. The Husband has a high school
diploma and is employed full time by the U.S. Postal Service. Neither party
has any separate property of substantial value.
The Wife has been a stay at home mother since May of 2013 when she was
pregnant with the parties’ twins. It was agreed by the parties that she would
no longer work and stay home with the three children. The Wife has been
employed with VIP Kids since 2017, teaching English as a foreign language
online making $21.00 per hour for an average of 17.5 hours per week for a
monthly wage of $1,592.00. The Husband is currently employed by the U.S.
1
In an amendment to this statute that became effective on March 31, 2022, our legislature added a thirteenth
factor: “The total amount of attorney fees and expenses paid by each party in connection with the
proceedings; whether the attorney fees and expenses were paid from marital property, separate property, or
funds borrowed by a party; and the reasonableness, under the factors set forth in Rule 1.5 of the Tennessee
Rules of Professional Conduct, and necessity of the attorney fees and expenses paid by each party.” Tenn.
Code Ann. § 36-1-121(c)(13).
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Postal service making $20.00 per hour working 5 days a week on a 4:00 pm-
12:30am schedule. His average monthly income according to his affidavit is
$3,772.00 per month. Both parties are relatively young and have the ability
to work such that they have equal ability to acquire assets and income in the
future.
. . . [T]he court heard testimony that the Wife was not given access to the
parties’ marital funds and that she had difficulty even providing sufficient
groceries and necessities to provide for the children even though the
defendant was working because she did not have access to these funds.
Testimony was heard from Christina Haley, the Wife’s aunt, that she often
assisted the Wife with groceries and clothes for the children. The Wife’s
father resided in the garage apartment of the marital home and paid half the
mortgage and half the utilities and still the Wife was not provided with
sufficient funds to meet the grocery and clothing needs of the children.
. . . [T]he Husband has dissipated the marital estate by concealing,
destroying, selling, or transferring a number of marital assets in violation of
the statutory injunction that went into place upon the filing of this divorce.
There is no separate property of either party other than the Toyota Corolla
purchased by the Husband for his own use and the bedroom furniture
purchased by the Wife for her own use after the parties separated.
[Husband] has filed with this court an affidavit of his monthly expenses.
However, the court notes here that the financial information he provided on
this affidavit is no longer accurate. Since the time of this filing the Husband
has moved into the house of his girlfriend and no longer has some of these
expenses such as rent and utilities and is no longer the only person buying
groceries. The Husband failed to supplement his affidavit following his
change of circumstances. The Husband’s girlfriend, Becky Runyons,
testified that he does not pay rent but that he helps with some of the bills,
specifically the cable bill for $170.00, a storage unit for $153.00, $60.00
towards the water bill, and will contribute $100.00 to $150.00 towards
groceries per month. This significantly reduces the expenses sworn to by the
Husband on his affidavit filed on December 9, 2019.
The Wife is employed by VIP Kids making $1,592.00 per month. The Wife
has filed with this court an affidavit of monthly expenses showing her
monthly expenses are $2,979.00. Compared to the income and expenses of
the Husband, the Wife is in the position of an economically disadvantaged
spouse.
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[Husband] violated the statutory injunction that went into place upon the
filing of the parties’ divorce under T.C.A. § 36-4-106(d) [that] enjoins the
parties from transferring, assigning, borrowing against, concealing, or in any
[way] dissipating or disposing, without the consent of the other party or an
order of the court, any marital property. The testimony showed by a
preponderance of the evidence that the Husband is guilty of transferring,
selling and destroying, and concealing from the Wife certain items of marital
property such that he is guilty of dissipating marital assets.
(Headings omitted, paragraphs reformatted, and references to parties changed to
“Husband” and “Wife” throughout).
The trial court found that Husband dissipated the marital estate by burning a bed
owned by the parties and some outdoor wicker furniture, throwing away their dining room
table and an entertainment center, giving away a riding mower and a baby crib, and selling
the bed of one of the children. The trial court further found that Husband took and
concealed the children’s toys and books, the hard drive containing their family photos, and
some of Wife’s jewelry. Husband denied taking the jewelry, but the trial court heard the
conflicting proof on this issue and expressly found Husband’s testimony to lack credibility.
Our review of the record in this case confirms that the trial court’s determinations
are not inconsistent with the statutory factors pertaining to the division of property, nor do
they lack proper evidentiary support. Husband argues that the trial court erred in
classifying as separate property the Toyota Corolla purchased by the Husband and the
bedroom furniture purchased by the Wife after they separated. The trial court awarded
Husband the car, which it valued at $7,000, and assigned Husband the corresponding debt
of $7,800. Likewise, the court awarded Wife the $1,500 furniture and assigned her the
debt of $1,500. As can be seen, there was no equity in either asset at the time of trial.
Thus, any classification error had no practical impact on the property division and was
entirely minimal. If the trial court had classified these two assets and their corresponding
debt as marital as Husband suggests, it would have had no significant impact to either party,
but from a purely accounting standpoint, it would arguably only benefit Wife’s position by
rendering the overall division of property slightly closer to equal.
As already noted, that net division of marital property was roughly 61% to Wife and
39% to Husband. Under the particular facts of this case, we hold that the trial court did not
abuse its broad discretion in determining this division to be fair and equitable under the
pertinent statutory factors.
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B. Alimony in Solido: Wife’s Attorney’s Fees
Husband challenges the trial court’s award of alimony in solido in the form of
Wife’s attorney’s fees of $9,840 and litigation costs of $1,640.70. As our Supreme Court
has stated,
It is well-settled that an award of attorney’s fees in a divorce case constitutes
alimony in solido. See Tenn. Code Ann. § 36–5–121(h)(1) (“alimony in
solido may include attorney fees, where appropriate”); Herrera v. Herrera,
944 S.W.2d 379, 390 (Tenn. Ct. App. 1996). . . . As with any alimony award,
in deciding whether to award attorney’s fees as alimony in solido, the trial
court should consider the factors enumerated in Tennessee Code Annotated
section 36-5-121(i). A spouse with adequate property and income is not
entitled to an award of alimony to pay attorney’s fees and expenses. Umstot
v. Umstot, 968 S.W.2d 819, 824 (Tenn. Ct. App. 1997). Such awards are
appropriate only when the spouse seeking them lacks sufficient funds to pay
his or her own legal expenses, see Houghland v. Houghland, 844 S.W.2d
619, 623 (Tenn. Ct. App. 1992), or the spouse would be required to deplete
his or her resources in order to pay them, see Harwell v. Harwell, 612 S.W.2d
182, 185 (Tenn. Ct. App. 1980). Thus, where the spouse seeking such an
award has demonstrated that he or she is financially unable to procure
counsel, and where the other spouse has the ability to pay, the court may
properly grant an award of attorney’s fees as alimony. See id. at 185.
Gonsewski v. Gonsewski, 350 S.W.3d 99, 113 (Tenn. 2011) (emphasis added). This Court
has also held that in making an award of attorney’s fees as alimony in solido, “a court must
carefully consider the relevant factors set forth in Tenn. Code Ann. § 36-5-121(i).” Yattoni-
Prestwood v. Prestwood, 397 S.W.3d 583, 597 (Tenn. Ct. App. 2012); accord Ellis v. Ellis,
621 S.W.3d 700, 708 (Tenn. Ct. App. 2019).
Our standard of review of the trial court’s decision to award alimony is as stated by
the Supreme Court:
For well over a century, Tennessee law has recognized that trial courts should
be accorded wide discretion in determining matters of spousal support. This
well-established principle still holds true today, with this Court repeatedly
and recently observing that trial courts have broad discretion to determine
whether spousal support is needed and, if so, the nature, amount, and duration
of the award.
Equally well-established is the proposition that a trial court’s decision
regarding spousal support is factually driven and involves the careful
balancing of many factors. Kinard v. Kinard, 986 S.W.2d 220, 235 (Tenn.
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Ct. App. 1998); see also Burlew, 40 S.W.3d at 470; Robertson v. Robertson,
76 S.W.3d 337, 340-41 (Tenn. 2002). As a result, “[a]ppellate courts are
generally disinclined to second-guess a trial judge’s spousal support
decision.” Kinard, 986 S.W.2d at 234. Rather, “[t]he role of an appellate
court in reviewing an award of spousal support is to determine whether the
trial court applied the correct legal standard and reached a decision that is not
clearly unreasonable.” Broadbent v. Broadbent, 211 S.W.3d 216, 220 (Tenn.
2006). Appellate courts decline to second-guess a trial court’s decision
absent an abuse of discretion. Robertson, 76 S.W.3d at 343. An abuse of
discretion occurs when the trial court causes an injustice by applying 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. Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176
(Tenn. 2011); Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010).
This standard does not permit an appellate court to substitute its judgment
for that of the trial court, but “‘reflects an awareness that the decision being
reviewed involved a choice among several acceptable alternatives,’ and thus
‘envisions a less rigorous review of the lower court’s decision and a
decreased likelihood that the decision will be reversed on appeal.’”
Henderson, 318 S.W.3d at 335 (quoting Lee Medical, Inc. v. Beecher, 312
S.W.3d 515, 524 (Tenn. 2010)). Consequently, when reviewing a
discretionary decision by the trial court, such as an alimony determination,
the appellate court should presume that the decision is correct and should
review the evidence in the light most favorable to the decision.
Gonsewski, 350 S.W.3d at 105-06 (internal citations and footnote omitted).
A trial court’s award of spousal support is governed by Tenn. Code Ann. § 36-5-
121(i), which provides:
In determining whether the granting of an order for payment of support and
maintenance to a party is appropriate, and in determining the nature, amount,
length of term, and manner of payment, the court shall consider all relevant
factors, including:
(1) The relative earning capacity, obligations, needs, and financial resources
of each party, including income from pension, profit sharing or retirement
plans and all other sources;
(2) The relative education and training of each party, the ability and
opportunity of each party to secure such education and training, and the
necessity of a party to secure further education and training to improve such
party’s earnings capacity to a reasonable level;
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(3) The duration of the marriage;
(4) The age and mental condition of each party;
(5) The physical condition of each party, including, but not limited to,
physical disability or incapacity due to a chronic debilitating disease;
(6) The extent to which it would be undesirable for a party to seek
employment outside the home, because such party will be custodian of a
minor child of the marriage;
(7) The separate assets of each party, both real and personal, tangible and
intangible;
(8) The provisions made with regard to the marital property, as defined in §
36-4-121;
(9) The standard of living of the parties established during the marriage;
(10) The extent to which each party has made such tangible and intangible
contributions to the marriage as monetary and homemaker contributions, and
tangible and intangible contributions by a party to the education, training or
increased earning power of the other party;
(11) The relative fault of the parties, in cases where the court, in its discretion,
deems it appropriate to do so; and
(12) Such other factors, including the tax consequences to each party, as are
necessary to consider the equities between the parties.
The trial court, applying these factors, found and held as follows in pertinent part:
In this case Husband clearly has the higher earning capacity with his salary
from the U.S. Postal Service of $3,772.00 per month compared to Wife’s
income from VIP Kids of $1,592.00 per month. The court also takes into
account that for a portion of the parties’ marriage Wife suffered economic
detriment for the benefit of the marriage by staying home with the parties’
children and being a homemaker and parent as is discussed under T.C.A.
§36-5-121(e)(2).
Wife has filed with this court an affidavit of monthly expenses showing her
monthly expenses are $2,979.00 which exceed her current income[,] clearly
showing to this court that she is in need of some type of spousal support.
* * *
[T]his court concludes that Wife is an economically disadvantaged spouse
who is in need of spousal support and that Husband has the ability to pay.
However, the court finds that Wife is not in need of rehabilitation. The court
finds that the more appropriate type of spousal support would be transitional
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alimony [because Wife] needs assistance to adjust to the economic
consequences of a divorce.
However, at the time of this divorce, Wife is already residing with a third
person, which raises the presumption that the third person is contributing to
the support of Wife and that she does not need alimony, under T.C.A. § 36-
5-121(g). Wife presented no proof to negate this presumption. Therefore,
for the reasons set forth above the court does not award any amount of
transitional alimony.
The last type of alimony that was considered by this court was alimony in
solido as set forth in T.C.A. §36-5-121(h). This court hereby orders that the
Husband will pay the Wife’s attorney fees for this divorce action as alimony
in solido.
Husband’s failure to pay the parties’ bills and bankruptcy during the pendency of
the divorce resulted in the repossession of their vehicles and eventual sale of the marital
residence. Further, as already noted, the trial court found Husband’s stated expenses to be
inflated because he was living in his girlfriend’s house. Wife, her aunt, and her father all
generally testified that she had difficulty making ends meet and providing for the children’s
needs because of Husband’s refusal to allow her access to funds in the marital checking
account, among other things.
During the marriage, Wife took care of practically all of the homemaking and
parenting duties of the household. At the time of trial, she was homeschooling the children.
Husband argues that the trial court erred in determining that she was comparatively
economically disadvantaged because Wife was earning a comparable hourly rate to his.
Wife worked from home teaching English online to Chinese students. She testified as
follows about her work schedule:
A: Currently I work from five in the morning until nine. And then at night I
work from 9:30 until midnight.
Q: Can you set your own schedule?
A: Yes. Oh, yes, yes, yes. I’m – yes. I’m an independent contractor through
them, so I can set my own schedule. And I do this so that I can be available
to the kids while they’re awake. So I’m only working when they’re sleeping.
Q: And how long have you been doing this schedule?
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A: This – well, when I first started I was just doing mornings. I would work
longer on – he had Tuesday and Thursday off back then when I first started,
and I would work longer those days. And since the divorce I’ve been
working nights also.
(Emphasis added). According to her testimony, Wife is working days that begin at 5am
and end around midnight, taking care of and homeschooling the children during their
waking hours and working on both ends of the day. Husband argues that she should not
have been awarded spousal support because she is capable of working more hours. The
trial court did not agree, and neither do we. We find nothing in our statutory scheme that
requires a court to penalize a parent for prioritizing the needs, educational and otherwise,
of the children. Wife has demonstrated that she has the need, and Husband the ability to
pay, for alimony in solido in the form of her attorney’s fees in this matter. We affirm the
trial court’s spousal support award.
C. Permanent Parenting Plan
A trial court’s decision regarding a parenting schedule is subject to review under the
deferential abuse of discretion standard. C.W.H. v. L.A.S., 538 S.W.3d 488, 495 (Tenn.
2017). As the Supreme Court instructed in C.W.H.,
This Court has previously 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. Armbrister [v. Armbrister], 414 S.W.3d [685], 692-93
[(Tenn. 2013]. . . . Indeed, trial courts are in a better position to observe the
witnesses and assess their credibility; therefore, trial courts enjoy broad
discretion in formulating parenting plans. Id. at 693 (citing Massey-Holt v.
Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007)). “Thus, determining the
details of parenting plans is ‘peculiarly within the broad discretion of the trial
judge.’ ” Id. (quoting Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988)).
Appellate courts should not overturn a trial court’s decision merely because
reasonable minds could reach a different conclusion. Eldridge v. Eldridge,
42 S.W.3d 82, 85 (Tenn. 2001).
Id.A trial court making a custody determination must apply the following analysis
provided by Tenn. Code Ann. § 36-6-106:
(a) In a suit for annulment, divorce, separate maintenance, or in any other
proceeding requiring the court to make a custody determination regarding a
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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 this subsection (a), 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:
(1) The strength, nature, and stability of the child’s relationship with each
parent, including whether one (1) parent has performed the majority of
parenting responsibilities relating to the daily needs of the child;
(2) Each parent’s or caregiver’s past and potential for future performance of
parenting responsibilities, including the willingness and ability of each of the
parents and caregivers to facilitate and encourage a close and continuing
parent-child relationship between the child and both of the child’s parents,
consistent with the best interest of the child. In determining the willingness
of each of the parents and caregivers to facilitate and encourage a close and
continuing parent-child relationship between the child and both of the child’s
parents, the court shall consider the likelihood of each parent and caregiver
to honor and facilitate court ordered parenting arrangements and rights, and
the court shall further consider any history of either parent or any caregiver
denying parenting time to either parent in violation of a court order;
(3) Refusal to attend a court ordered parent education seminar may be
considered by the court as a lack of good faith effort in these proceedings;
(4) The disposition of each parent to provide the child with food, clothing,
medical care, education and other necessary care;
(5) The degree to which a parent has been the primary caregiver, defined as
the parent who has taken the greater responsibility for performing parental
responsibilities;
(6) The love, affection, and emotional ties existing between each parent and
the child;
(7) The emotional needs and developmental level of the child;
(8) The moral, physical, mental and emotional fitness of each parent as it
relates to their ability to parent the child. . . .
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(9) The child’s interaction and interrelationships with siblings, other relatives
and step-relatives, and mentors, as well as the child’s involvement with the
child’s physical surroundings, school, or other significant activities;
(10) The importance of continuity in the child’s life and the length of time
the child has lived in a stable, satisfactory environment;
(11) Evidence of physical or emotional abuse to the child, to the other parent
or to any other person. The court shall, where appropriate, refer any issues
of abuse to juvenile court for further proceedings;
(12) The character and behavior of any other person who resides in or
frequents the home of a parent and such person’s interactions with the child;
(13) The reasonable preference of the child if twelve (12) years of age or
older. The court may hear the preference of a younger child upon request.
The preference of older children should normally be given greater weight
than those of younger children;
(14) Each parent’s employment schedule, and the court may make
accommodations consistent with those schedules; and
(15) Any other factors deemed relevant by the court.2
The trial court, applying the statutory factors, made extensive and detailed findings
pertinent to each applicable factor, stating as follows:
Wife has performed the majority of the parenting responsibilities relating to
the daily needs of the parties’ three minor children. Wife continues to be the
primary caretaker for the minor children during the pendency of this divorce.
Husband did not cook for the children, bathe the children, nor had he ever
cared for the children overnight alone before the filing of this divorce action.
The testimony showed that Husband was virtually uninvolved with the
parties’ twins (Paxton and Piper), clearly showing a preference towards
interacting with the older child Carolina only. The testimony also shows that
Husband was uninvolved with the minor children in comparison with Wife,
not attending birthday parties for his own twins, [and] not attending the
children’s extracurricular activities (basketball/dance).
2
Effective March 18, 2022, the General Assembly amended Tennessee Code Annotated § 36-6-106(a) by
adding a sixteenth factor – “Whether a parent has failed to pay court-ordered child support for a period of
three (3) years or more.” See 2022 Tenn. Pub. Acts, Ch. 671 § 1 (H.B. 1866).
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[Husband] has previously shown an inability or unwillingness to provide for
these minor children, withholding access to marital funds to provide for
groceries and clothing for the minor children, such that Wife sought help
from her family members to provide for the [needs] of the minor children.
In addition, Husband, by not paying the mortgage on the marital home or any
car payments, caused both his automobile, as well as the automobile driven
by Wife and used to transport the minor children, to be repossessed during
the course of this divorce. This court entered an order for the sale of the
marital home prior to it being foreclosed upon. Photographs were provided
to this court showing that the children have been returned to Wife after
visiting with Husband in filthy unwashed clothing and having not been
adequately bathed. In addition, the children have been returned to Wife with
severe sunburn and with injuries that were not explained to Wife.
Husband, while driving for UBER, took cocaine during the course of the
parties’ marriage. Husband has told several versions of how many instances
that this occurred, but admits to at least one instance. In addition, Husband
would drink to excess around the parties’ minor children and at family
gatherings where his [behavior] was observed by other another witness who
testified at trial (Christina Haley). Husband also jumped out of a moving
vehicle during an argument with Wife, with the children present in the
automobile. . . . The testimony showed that Husband was verbally abusive
during the course of the parties’ marriage and would damage property during
arguments with Wife by kicking doors and punching holes in the walls.
The children have resided in a home shared by the maternal grandfather both
currently and during the course of the parties’ marriage, as the maternal
grandfather lived in the garage apartment of the marital home and shared the
expenses of the marital home. Wife currently continues to reside with the
minor children in a residence shared with the maternal grandfather. In
contrast, the minor children had no relationship with the paternal
grandmother prior to the parties’ separation when the paternal grandmother
moved into the home with Husband to help him care for the children during
his visitation time. In fact, Husband and the paternal grandmother did not
have a relationship during the course of the parties’ marriage.
The children . . . live in a safe, stable and satisfactory environment in the
home of Wife. Husband currently resides in the home of his girlfriend,
Becky Runyons, and has done so since May 2020. They have no plans to
marry. This residence is inhabited by 10 individuals when the children and
grandchildren of the girlfriend are present. The home they live in is a five-
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bedroom home. However, it does appear that the children are provided with
adequate sleeping arrangements.
The court did take into consideration what this court believed to be a lack of
credibility of Husband as it related to his multiple version of the events
around his cocaine use[.] The court also notes here that at no time since the
parties’ separation has Husband been solely responsible for the care of the
parties’ minor children. He moved his mother in with him to help care for
the children when they were with him and now lives with his girlfriend who
assists him in caring for the minor children during his co-parenting time. The
paternal grandmother, Lynn Bluder, testified that she was the one who did
the grocery shopping, took care of the children’s baths, washed their hair,
cooked their meals, washed the children’s clothes, and helped with
exchanges with Wife.
The court also finds that Husband lacked credibility and contradicted his own
testimony regarding a number of the children’s belongings (toy chest, books,
etc.). [He first testified] that he did [not] have these items, and then later
correct[ed] his testimony after other [of his] witnesses testified that these
items were in his possession.
(Descriptors of parties in original changed to “Husband” and “Wife” throughout).
The testimony and other proof in the record supports the trial court’s findings. The
parties testified in contradictory ways on numerous points and issues. It is entirely clear
that the trial court credited Wife’s testimony and not Husband’s on these areas of
disagreement. Husband admits in his brief that “it is undisputed that the Father was not
greatly involved in the children’s daily needs prior to the Mother filing for divorce,” that
“for the majority of the children’s lives, the Mother has been the primary caregiver,” and
“that there was evidence of verbal arguments of the parties that could be construed as abuse
prior to the parties’ separation.” Father does not challenge the factual accuracy of the trial
court’s findings except for one insignificant matter: he says the court was wrong in finding
that Wife began homeschooling the children in March of 2020, when the proof showed that
she actually began in August.
Under the facts and circumstances presented here, we find that the trial court did not
abuse its discretion in determining that it was in the children’s best interest that Husband
be granted 90 days per year of co-parenting time. However, the specific day-to-day
schedule set forth in the PPP gives him less time. It provides that Husband will have the
children from Friday to Sunday every other week; every other Easter, Passover, Memorial
Day, and Thanksgiving Day and Friday thereafter; every Father’s Day and Husband’s
birthday; either Christmas Eve or Christmas Day; and one week of vacation time in the
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summer. The parties do not disagree that this time adds up to about 63 days per year.
Because the PPP is inconsistent and irreconcilable in this regard, we vacate the day-to-day
schedule and remand to the trial court in order to craft a specific schedule that provides
Husband 90 days per year.
D. Criminal Contempt
The trial court held Husband to be guilty of one count of criminal contempt during
the trial, stating as follows:
This court finds that the defendant in this matter, Aaron L. Burnett[,] is guilty
of one count of criminal contempt for his willful misbehavior in the presence
of this court or so near thereto as to obstruct the administration of justice and
that the defendant willfully disobeyed this court[’s] instruction and
commands to not discuss this case with any of the witness[es] waiting to
testify in this matter who were instructed to wait outside the courtroom by
this Honorable Judge. During a break, the Defendant was overheard by an
officer of the court discussing the proof of the case with his waiting witness,
Lynn Bluder. This also constitutes unlawful interference with the
proceedings of this court. Therefore the defendant is found guilty of one
count of criminal contempt and charged a fine of $50.00.
The contempt finding was based on a single statement that was overheard by the court
officer and relayed to the trial court. The officer heard a potential witness say to Husband,
“how is she going to prove that?” during a mid-morning break of the trial.
The trial court found Husband guilty of violating the sequestration rule, Tennessee
Rule of Evidence 615, often referred to in shorthand as simply “the Rule,” which provides
that “[a]t the request of a party the court shall order witnesses [to be] excluded at trial or
other adjudicatory hearing. . . . The court shall order all persons not to disclose by any
means to excluded witnesses any live trial testimony or exhibits created in the courtroom
by a witness.” Husband and the potential witness denied discussing any testimony outside
of court. Husband also argues that the alleged violation took place during the mid-morning
break, and that “it wasn’t until the lunch break that that the Chancellor told the parties that
they were not supposed to discuss the testimony or exhibits presented in court with
witnesses.” At oral argument, counsel for Wife conceded that the criminal contempt
finding was improperly made by the trial court. Consequently, we reverse the trial court’s
holding of Husband in criminal contempt.
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V. CONCLUSION
The day-to-day visitation schedule in the permanent parenting plan is vacated, and
the case remanded to the trial court with instructions to craft a schedule that allows
Husband 90 days per year. Husband’s conviction of one count of criminal contempt is
reversed. The trial court’s judgment is in all other respects affirmed. Costs on appeal are
assessed to the appellant, Aaron Burnett, for which execution may enter if necessary.
______________________________________
KRISTI M. DAVIS, JUDGE
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