                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                    November 15, 2012 Session

            MATTHEW BECK RAMSEY v. MICHELLE MIN RAMSEY

             Direct Appeal from the General Sessions Court for Wilson County
                      No. 2010-DC-87     John Thomas Gwin, Judge


                   No. M2011-02483-COA-R3-CV - Filed January 25, 2013


This appeal arises from a divorce action in which the trial court named Mother the primary
residential parent and entered a permanent parenting plan limiting Father’s parenting time
to one hundred and eight (108) days a year. Father appeals. We affirm.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions 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 J. S TEVEN S TAFFORD, J., joined.

William Barry Wood, Nashville, Tennessee, for the appellant, Matthew Beck Ramsey.

Julie M. Robinson, Lebanon, Tennessee, for the appellee, Michelle Min Ramsey.

                                   MEMORANDUM OPINION 1

                                              Background

       On April 23, 2006, Michelle Min Ramsey (“Mother”) and Matthew Beck Ramsey
(“Father”) were married. The parties only child, a daughter, was born in 2009. Father is


       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       be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited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.
employed by the State of Tennessee Department of Labor and provided health insurance for
the minor child at the time of trial. Further, at the time of trial, Father was in his last year of
law school. Mother has a masters degree and is employed as an auditor for the Tennessee
Regulatory Agency.

       On June 3, 2010, Father filed a complaint for absolute divorce in the Wilson County
General Sessions Court. On June 17, 2010, an agreed pendente lite order was entered
providing, in pertinent part, that the parties would alternate parenting time on a weekly basis,
that Mother would have a psychiatric evaluation, and that Father would have exclusive
possession of the marital home. On July 21, 2010, Mother filed an answer and
counter-complaint for divorce. Thereafter, on August 16, 2010, the trial court ordered that
the parties continue to divide parenting time on a week-to-week basis. The trial court further
found that Father’s decision to go forward with law school was appropriate. Father answered
Mother’s counter-complaint for divorce on August 26, 2010.

        On August 23, 2011, a trial was conducted in this matter. On October 11, 2011, the
trial court entered a final order in which it found that both parties were entitled to a divorce,
granted a divorce to both parties, and named Mother the primary residential parent. In
analyzing the relevant factors under Tennessee Code Annotated section 36-6-106 (2010), the
trial court found that the parties were on equal footing as to most of the factors, but that the
following issues weighed against Father: (1) Father’s attendance at night law school; (2)
Father’s attendance at sporting events; (3) Father’s trips to visit his paramour; (4) that the
pendente lite order had disrupted the child; and (5) that both parties were stable, but Father’s
family had become fractured as a result of the divorce. Further, the trial court adopted
Mother’s proposed parenting plan, with some modifications, which provided Father one
hundred and eight (108) days of annual parenting time. Thereafter, Father timely filed a
notice of appeal to this Court.

                                        Issues Presented

       On appeal, Father argues that the trial court erred by naming Mother the primary
residential parent and by awarding Father only one hundred and eight (108) days of annual
parenting time. Additionally, Mother requests attorney’s fees incurred on appeal pursuant
to Tennessee Code Annotated section 27-1-122, because Father’s appeal “was frivolous or
taken solely for delay.”

                                      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

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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).

        Trial courts have wide discretion to establish a parenting arrangement that is in the
best interests of the child. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citations
omitted). The trial court’s judgment often turns on subtle factors which require the court to
assess the credibility and demeanor of the witnesses. 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. 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.

                                          Discussion

     As this Court recently explained in Thompson v. Thompson, No. M2011-02438-COA-
R3-CV, 2012 WL 5266319 (Tenn. Ct. App. Oct. 24, 2012):

       There are currently two different statutes setting out non-exclusive lists of
       factors for the trial court to apply to help it reach the goal of determining a
       child’s best interest. Tennessee Code Annotated § 36–6–106 applies to “cases
       requiring the court to make a custody determination. . . .” Tennessee Code
       Annotated § 36–6–404 requires that a permanent parenting plan be
       incorporated into “any final decree or decree of modification in an action for
       absolute divorce, legal separation, annulment, or separate maintenance
       involving a minor child.” A parenting plan must include a residential
       schedule, which designates in which parent’s home the child will reside on
       different days, and the court must designate a “primary residential parent.” In
       determining the residential schedule, the court is to consider a list of factors.
       Tenn. Code Ann. § 36–6–404(b).

       The trial court herein applied the factors in Tenn. Code Ann. § 36–6–106(a),
       which apply to custody determinations. Although the parenting plan statutes
       are applicable herein, the legislature's list of factors at Tenn. Code Ann. §
       36–6–404(b) for the court to consider in determining a parenting plan and
       residential schedule are substantially similar to the factors set out in Tenn.
       Code Ann. § 36–6–106(a), and both allow for consideration of any other

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       factors the court deems relevant. In this case, as in most cases, the analysis
       and the result would be the same regardless of which set of factors is applied.
       To avoid confusion, we will refer in our discussion to the same set of factors
       as was applied by the trial court.

Id. at *6. In the case at bar, as was the case in Thompson, the trial court’s analysis focused
on the factors listed in Tennessee Code Annotated section 36-6-106(a).2 Accordingly, our
discussion will focus on the same set of factors.

       In its final order, naming Mother as the primary residential parent and adopting


       2
           Tennessee Code Annotated section 36-6-106(a) provides the following list of factors:

               (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; provided, that, where there are allegations that one (1) parent has
       committed child abuse, as defined in [section] 39-15-401 or [section] 39-15-402, or child
       sexual abuse, as defined in [section] 37-1-602, against a family member, the court shall
       consider all evidence relevant to the physical and emotional safety of the child, and
       determine, by a clear preponderance of the evidence, whether such abuse has occurred. The
       court shall include in its decision a written finding of all evidence, and all findings of facts
       connected to the evidence. In addition, the court shall, where appropriate, refer any issues
       of abuse to the juvenile court for further proceedings;
               (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 and both of the child’s parents, consistent with the best interest of the
       child.

Tenn. Code Ann. § 36-6-106(a)(1)-(10).

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Mother’s proposed permanent parenting plan with slight modifications, the trial court
concluded as follows:

              These parents share substantially equal love, affection and emotional
      ties with the child. Father voluntarily pursues more outside interests than does
      Mother, which interests take away from Father’s voluntary parenting
      opportunities. These include night law school, attendance at sporting events,
      and trips to visit his paramour. [Tenn. Code Ann. § 36-6-106(a)(1).]

              There is no significant difference in the parties’ disposition to provide
      the child with necessities. Mother has clearly been the primary caregiver since
      the child’s birth. Tenn. Code Ann. § 36-6-106(a)(2).

              The child’s life has primarily been disrupted by the Court’s pendente
      lite Order. The Court finds that the maximum stability is available to the child
      in the continued care of the Mother. Tenn. Code Ann. § 36-6-106(a)(3).

             The Court finds that both parents are stable. The Court finds that
      Mother’s “acting out” behaviors were, as she testified, efforts to reunite the
      family at the time of Father’s insistence upon seeing his paramour. Father’s
      family, on the other hand, has become fractured over this very case. Tenn.
      Code Ann. § 36-6-106(a)(4).

             The Court finds that both parties enjoy comparable physical and mental
      health. Tenn. Code Ann. § 36-6-106(a)(5).

             The Court finds no credible evidence of any physical or emotional
      abuse to the child that would preponderate for or against either parents [sic]
      request for primary residential parenting. Tenn. Code Ann. § 36-6-106(a)(8).

             The character and behavior of other persons who frequent the homes of
      the parents, and their interactions with the child, do not preponderate for or
      against either parent. Tenn. Code Ann. § 36-6-106(a)(9).

              Father’s family has become vehemently estranged over this case, to the
      point that the paternal grandfather will not visit with the child when his sisters
      are present. Father likewise denounces his aunts. Father is in his last year of
      law school, attending classes three nights weekly. Even with the unselfish
      efforts of the paternal grandparents to drive three (3) hours each way to Mt.
      Juliet to babysit, the arrangement is neither practical, nor in the best interests

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        of the minor child. Mother’s past and potential for future performance of
        parenting responsibilities is superior to that of Father, and is consistent with
        the best interest of the child. Tenn. Code Ann. § 36-6-106(a)(10).

        Father argues that his decision to complete law school and attend sporting events are
factors that should weigh positively in his favor. Father further argues that the trial court’s
pendente lite order, and his decision to visit his paramour during the marriage, are factors that
should at least be considered the fault of both parties. In sum, Father argues that the trial
court erred in limiting his parenting time in light of the legislative preference to allow for
maximum participation by both parents in the life of the child.3 In response, Mother argues
that Father’s decision to take night classes in law school, attend sporting events, and visit his
paramour during the marriage, resulted in his frequent absence in the child’s life, and thus
the trial court correctly considered them against Father in its analysis.

        After thoroughly reviewing the record, we find no basis upon which to disturb the trial
court’s judgment. In arriving at its decision, the trial court considered, inter alia, the
testimony of nine (9) witnesses, including: Mother; Father; the paternal grandfather; the
paternal grandmother; two of the paternal aunts; the paternal grandfather’s ex-girlfriend; and
Mother’s employer. Although the testimony regarding Mother and Father’s parenting
abilities was conflicting at times, when such conflicts arise, the trial court is in a superior
position to evaluate the credibility and demeanor of witnesses. See Burden v. Burden, 250
S.W.3d 899, 905 (Tenn. Ct. App. 2007) (citing Massengale v. Massengale, 915 S.W.2d 818,
819 (Tenn. Ct. App. 1995); Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn. Ct. App.
1991)). As a result, we give considerable deference to the trial court’s findings of credibility
and the weight to be given to the testimony. Id. The testimony in the record clearly shows
that Father was frequently absent throughout most of the weeks in which he was responsible
for the child. Despite these facts, Father points to nothing in the record, beyond the
commendable efforts of the paternal grandparents to care for the child during his absence,
that would otherwise support the result he seeks. Essentially, Father asks this Court to


       3
         As recently amended, Tennessee Code Annotated section 36–6–106(a) currently provides, in
pertinent part:

        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.

“Accordingly, Tennessee courts must now fashion custody arrangements so as to give each parent the
maximum amount of time possible with the child, in accordance with the child’s best interests.” Rountree
v. Rountree, 369 S.W.3d 122, 129 (Tenn. Ct. App. 2012) (footnote omitted).

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reevaluate the evidence presented to the trial court and reach a different conclusion. We
emphasize, however, that a trial court's decision regarding parental responsibility is reviewed
for an abuse of discretion. Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001). As such,
we must affirm the trial court’s ruling “‘so long as reasonable minds can disagree as to
propriety of the decision made.”’ Id. at 85 (quoting State v. Scott, 33 S.W.3d 746, 752 (Tenn.
2000); State v. Gilliland, 22 S.W.3d 266, 273 (Tenn. 2000)). Therefore, we decline Father’s
invitation to second-guess the trial court’s discretionary decision in this matter. However,
we have not foreclosed the possibility of modifying the current parenting plan should either
party present evidence of a material change in circumstances warranting a modification.
Instead, we conclude only that the present record does not support Father’s assertions that
the trial court’s determination is not in the best interests of the child. Accordingly, we affirm
the trial court’s decision naming Mother the primary residential parent and awarding Father
one hundred and eight (108) days of annual parenting time.

      Lastly, we must address Mother’s request for attorney’s fees incurred on appeal.
Mother seeks attorney’s fees pursuant to Tennessee Code Annotated section 27-1-122, which
provides:

       When it appears to any reviewing court that the appeal from any court of
       record was frivolous or taken solely for delay, the court may, either upon
       motion of a party or of its own motion, award just damages against the
       appellant, which may include but need not be limited to, costs, interest on the
       judgment, and expenses incurred by the appellee as a result of the appeal.

“An appeal is deemed frivolous if it is devoid of merit or if it has no reasonable chance of
success.” Wakefield v. Longmire, 54 S.W.3d 300, 304 (Tenn. Ct. App. 2001). “[I]mposing
a penalty for a frivolous appeal is a remedy which is to be used only in obvious cases of
frivolity and should not be asserted lightly or granted unless clearly applicable—which is
rare.” Henderson v. SAIA, Inc., 318 S.W.3d 328, 342 (Tenn. 2010) (citations omitted).
Although we decided the issues adversely to Father in this matter, we are not persuaded that
this appeal is frivolous or was taken solely for the purpose of delay. Therefore, we deny
Mother’s request for attorney’s fees incurred on appeal.

                                          Conclusion

       For the foregoing reasons, we affirm the judgment of the trial court. Costs of this




                                               -7-
appeal are taxed to the Appellant, Matthew Beck Ramsey, and his surety, for which
execution may issue if necessary.




                                             _________________________________
                                             DAVID R. FARMER, JUDGE




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