                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                      August 24, 2011 Session

                         JAMES ELDRIDGE v. KATIE HUNDLEY

                  Direct Appeal from the Juvenile Court for Shelby County
                          No. S6522    Herbert J. Lane, Magistrate


                   No. W2011-00728-COA-R3-JV - Filed September 8, 2011


Father filed a petition to modify the juvenile court’s order naming Mother primary residential
parent and establishing a visitation schedule. The trial court modified the visitation schedule,
but did not establish visitation as requested by Father. Father appeals. We affirm.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
                                  and Remanded

D AVID R. F ARMER, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and H OLLY M. K IRBY, J., joined.

Rachel L. Songstad-Lambert, Arlington, Tennessee, for the appellant, James Eldridge.

James Stephen King, Memphis, Tennessee, for the appellee, Katie Hundley.

                                   MEMORANDUM OPINION 1

       This appeal arises from a March 2008 petition to modify child custody and visitation,
and comes to this Court after a disconcertingly protracted three-year journey in the Shelby
county courts. The parties’ child, “Becca,” was born in August 2006. Shortly thereafter,
Petitioner/Appellant James Eldridge (Mr. Eldridge) filed petitions in the Juvenile Court for


       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion
       would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.
Shelby County to establish parentage and for visitation. In his petition for visitation, Mr.
Eldridge requested “liberal and frequent parenting time” with Becca. In December 2006, Mr.
Eldridge filed an amended petition seeking joint decision making and shared parenting time
on an alternate week basis. Following a hearing in February 2007, the juvenile court entered
an order awarding the parties joint custody and naming Becca’s mother,
Respondent/Appellee Katie Hundley (Ms. Hundley) primary residential parent. The court
ordered that Mr. Eldridge’s parenting time would be the first, third and fifth weekends of
each month, beginning 6:00 PM on Friday through 6:00 PM on Sunday; two weeks in the
months of June and July; and part of the major holidays.

       In March 2008, Mr. Eldridge filed a petition to modify the parenting plan. In his
petition, Mr. Eldridge asserted that a substantial change of circumstance had occurred that
warranted an increase in his parenting time. Mr. Eldridge filed a motion for mediation in
August 2008, which was granted by the juvenile court in September 2008. The matter was
continued until January 2009. Following several additional continuances, Mr. Eldridge’s
petition was heard by a juvenile court magistrate judge in November 2009. In December
2009, the magistrate judge entered an order stating that Ms. Hundley would remain Becca’s
primary residential parent and have decision-making authority. The magistrate modified Mr.
Eldridge’s parenting time with Becca to the first and third week of each month, and set
Christmas visitation from 3:00 PM on December 25 through 6:00 PM on December 26. Ms.
Hundley requested a hearing before the juvenile court judge.

        Following a number of continuances , the matter was tried before a juvenile court
special judge in March 2010. The juvenile court granted Mr. Eldridge’s petition to modify
the February 2007 order, but set his parenting time as every other weekend from 5:00 PM on
Thursday through 5:00 PM on Sunday; two weeks in the months of June and July; and
alternating holidays. The juvenile court entered its order on March 15, 2010, and Mr.
Eldridge, acting pro se, filed a notice of appeal on the same day. In his notice of appeal,
however, Mr. Eldridge erroneously appealed to the circuit court rather than this court. In
April 2010, counsel for the parties filed notices of appearance, and the matter was heard in
the circuit court in June 2010. In March 2011, the circuit court entered an order finding that
it lacked jurisdiction and that jurisdiction over the appeal was proper in this Court. The
circuit court transferred the matter to us by order entered March 2, 2011.

        Upon preliminary review of the record, we determined the order appealed was not a
final judgment where both parties had asserted claims for attorney’s fees that had not been
adjudicated in the juvenile court. On April 7, 2011, we entered an order requiring the parties
to show cause why the matter should not be dismissed for lack of a final judgment. On April
14, 2011, the juvenile court entered an order providing that the parties would be responsible
for their own attorney’s fees. On June 20, 2011, the final brief was filed in this Court, and

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we heard oral argument in the matter on August 24, 2011.

                                       Issue Presented

        Mr. Eldridge presents the issue as whether the trial court erred by setting aside the
December 2009 ruling of the juvenile court magistrate, which awarded Mr. Eldridge alternate
week parenting time. However, because review by the juvenile court judge of Mr. Eldridge’s
March 2008 petition is de novo, the issue raised for our review, as we re-word it, is whether
the trial court abused its discretion in establishing the visitation schedule.

                                    Standard of Review

       We review the trial court’s findings of fact with a presumption of correctness unless
the evidence preponderates otherwise. Tenn. R. App. P. 13(d). Accordingly, we will not
reverse the trial court’s factual findings unless they are contrary to the preponderance of the
evidence. We review the trial court’s conclusions on matters of law de novo, however, with
no presumption of correctness. Tenn. R. App. P. 13(d). Our review of a trial court’s
application of the law to the facts is de novo, with no presumption of correctness. State v.
Ingram, 331 S.W.3d 746, 755 (Tenn. 2011).

                                         Discussion

        The trial court has wide discretion to establish a parenting arrangement that is in the
best interest of the child. Tennessee Code Annotated § 36-6-101(a)(2)(A)(2010); Eldridge
v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citations omitted). The court’s judgment often
turns on subtle factors which require the court to assess the credibility and demeanor of the
witnesses. E.g., Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997).
We will not substitute our judgment for that of the trial court on these matters. E.g.,
Eldridge, 42 S.W.3d at 88. Rather, we will disturb a trial court’s decision regarding parental
responsibility only if it “falls outside the spectrum of rulings that might reasonably result
from an application of the correct legal standards to the evidence found in the record.” Id.

       A decree pertaining to a residential parenting schedule order may be modified where
the petitioner demonstrates, by a preponderance of the evidence, that a material change of
circumstance has occurred such that modification is in the best interests of the child. Tenn.
Code Ann. § 36-6-101(a)(2)(C)(2010). Thus, the court must utilize a two-part test in
determining whether a change of custody or visitation is warranted. First, it must determine
whether a material change of circumstance has occurred that affects the child’s well being.
Second, if it finds a material change of circumstance that affects the child, the court must
determine whether a change of custody is in the best interests of the child. See id.

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        In this case, Mr. Eldridge asserts that the alternate week visitation schedule
established by the juvenile court magistrate was in Becca’s best interest. He argues that the
psychologists who testified at the March 2010 hearing testified that Becca was thriving under
the alternate week arrangement, and that the trial court’s judgment denying his petition to
modify the visitation schedule was influenced by the court’s observation that he and Ms.
Hundley have not been able to effectively communicate with one another or to work together
to make decisions jointly. Mr. Eldridge submits that, although the March 2010 proceeding
before the juvenile court judge was a de novo proceeding to modify the 2007 visitation
schedule, the fact that Becca was thriving under the alternate week visitation schedule
established by the magistrate judge cannot be disregarded.

        Ms. Hundley, on the other hand, contends the record supports the trial court’s
determination that joint parenting of Becca is not feasible in this case. She argues that the
expert testimony of the psychologists was that equal parenting time is not successful when
the parents cannot cooperate, and that the trial court considered the entire record when it
determined the alternate week arrangement would not be successful in this case. Ms.
Hundley asserts that this is demonstrated by the fact that, for example, although the referee’s
order of December 2009 gave her decision-making authority, Mr. Eldridge unilaterally
changed childcare arrangements for Becca while she was in his care. Ms. Hundley does not
cross-appeal, but asserts the trial court did not abuse its discretion when it established the
visitation schedule in this case.

        It is well-settled that the best interests of the child is the court’s primary concern when
establishing child custody and visitation schedules. In this case, the trial did not make
specific findings of fact to support its determination as required by Rule 52.01 of the
Tennessee Rules of Civil Procedure, as amended in 2009. In some cases, the trial court’s
failure to make such findings would be a basis for vacating the trial court’s judgment and
remanding the matter. Wall v. Wall, No. W2010–01069–COA–R3–CV, 2011 WL 2732269
at *26 n. 31 (Tenn. Ct. App. July 14, 2011)(citing See, e.g., Clement Homes, Inc. v. Chilcutt,
No. W2009–02277–COA–R3–CV, 2010 WL 2812574, at *2 (Tenn. Ct. App. July 16, 2010)).
In some instances, however, where we may review the record independently to determine
whether the evidence supports the trial court’s judgment, we have found it unnecessary to
vacate the trial court’s judgment based on the failure to comply with Rule 52.01. Id. In this
case, the record transmitted contains evidence including the testimony of the expert
witnesses; text messages and voice mail message of the parties; internet postings; myspace
messages; and a transcript of the proceedings before the juvenile court that contains
approximately five pages of the trial court’s oral findings and conclusions. We accordingly
find it unnecessary to vacate and remand this matter for written findings.

       Upon review of the record, we cannot say that the trial court abused its discretion in

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this case. It is clear that Mr. Eldridge and Ms. Hundley have had a highly contentious
relationship. Their relationship ended shortly after Ms. Hundley became pregnant. Ms.
Hundley began dating her current husband before Becca was born, and Mr. Eldridge began
dating his current wife shortly after Becca’s birth. The transcript of the proceedings contains
a finding by the trial court that Mr. Eldridge and Ms. Hundley “are not able to get along with
one another” and “are not able to work together” despite “hav[ing] gone on with their
respective lives.” The trial court stated, “I don’t find that it’s in the child’s best interest that
this 50/50 time take place,” but that Mr. Eldridge should have “significant visitation.”

        When this matter was heard in March 2010, the parties each had married their current
spouses, and Mr. Eldridge and his wife had a one-year old child. However, the parties
undisputedly could not get along with one another. There is nothing in the record to suggest
that the trial court’s March 2010 order demonstrates an abuse of discretion, or that the
visitation established by the special judge would not be in Becca’s best interest, particularly
as she approaches school age and where the parties reside in different counties.

       Although the issue before the trial court in March 2010 was whether a substantial and
material change in circumstance had occurred since entry of the 2007 order such that a
modification of custody was warranted, Mr. Eldridge asserts that the expert testimony with
respect to Becca’s adjustment to the week on/week off schedule should not be disregarded.
The expert testimony in this case, as we read it, was that at the time of the March 2010
hearing, Becca was basically a “normal” three-year old.

        Dr. Amy Beebe (“Dr. Beebe”) testified that she had never met Ms. Hundley, but had
met with Mr. Eldridge and Becca twice in her office and once at Mr. Eldridge’s home. She
testified that Becca appeared to be a “very typical three-year old” developmentally, and that
her relationship with Mr. Eldridge was “very appropriate, very typical.” Dr. Beebe stated
that Becca was “a little clingy,” but that was within the range of normal behavior for a three-
year old. Dr. Beebe also testified that whether equal parenting time may be successful must
be assessed on a case-by-case basis, and that the success of any visitation schedule depended
on the cooperation of the parents. She testified that for Becca’s age the week on/week off
schedule was not her “first choice,” and that ideally children would see their parents every
day.

       Dr. John Ciocca (“Dr. Ciocca”) testified that Becca could “tolerate a split custody
arrangement,” and that time apart from either parent should not be more than three or four
days. Dr. Ciocca testified that alternating three or four day visitation periods with each
parent might be best, but that the court might need to “revisit the parenting arrangements”
when Becca approached school age. Dr. Ciocca stated that the teachers at Becca’s pre-school
did not indicate that Becca’s separation anxiety had improved since the referee’s December

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2009 order, but that they had seen a gradual reduction over an extended period of time
predating the 2009 order. Dr. Ciocca’s testimony largely confirmed Dr. Beebe’s that Becca
was a developmentally-appropriate three-year old.

        Mr. Eldridge has failed to carry his burden on appeal to demonstrate that the trial
court’s March 2010 judgment constitutes an abuse of discretion. Additionally, his assertion
that observations of Becca in May 2010 suggested that Becca experienced more anxiety
following the March 2010 order of the trial court is not in the record before us. In addition
to the expert testimony noted above, the record contains evidence with respect to the parties’
behavior toward each other to support the trial court’s determination that a joint custody or
equal parenting arrangement would not be successful in this case.

                                          Holding

       In light of the foregoing, the judgment of the trial court naming Ms. Hundley primary
residential parent with decision-making authority and establishing residential parenting time
for Mr. Eldridge is affirmed. We join the trial court in reminding that parties that
cooperating with each other as they raise Becca, and treating one another with courtesy and
respect, is in Becca’s best interest. Ms. Hundley’s request for attorney’s fees on appeal is
denied. Costs of this appeal are taxed to the Appellant, James Eldridge, and his surety, for
which execution may issue if necessary.




                                                   _________________________________
                                                   DAVID R. FARMER, JUDGE




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