                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                            Assigned on Briefs March 14, 2003

           JAMES CHRISTOPHER KYZER v. PATTY BLACKBURN

                      Appeal from the Juvenile Court for Bradley County
                          No. J-8820    C. Van Deacon, Jr., Judge

                                      FILED JUNE 30, 2003

                                 No. E2002-02254-COA-R3-JV


This is a custody dispute between James Christopher Kyzer, the father of Haleigh Sharee Kyzer,
d.o.b. 10/6/93, and the child’s maternal grandmother, Patti Blackburn, which arose after Haleigh’s
mother, the ex-wife of Mr. Kyzer, was killed in an automobile accident. The Trial Judge awarded
custody to the father upon his finding that “there has been no showing of substantial risk of harm to
the child.” We affirm.


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

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
CHARLES D. SUSANO, JR., JJ., joined.

Conrad Finnell, Cleveland, Tennessee, for the Appellant, Patty Blackburn

Jimmy W. Bilbo, Cleveland, Tennessee, for the Appellee, James Christopher Kyzer

                                  MEMORANDUM OPINION


         At the outset we recognize that “parents have a fundamental right to the care, custody, and
control of their children.” In Re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988), citing Stanley
v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). However, this right is not absolute
and may be terminated if there is clear and convincing evidence justifying termination under the
pertinent statutory scheme. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599
(1982). Clear and convincing evidence is evidence that “eliminates any serious or substantial doubt
concerning the correctness of the conclusions to be drawn from the evidence.” O’Daniel v. Messier,
905 S.W.2d 182, 188 (Tenn. Ct. App. 1995).
        It is true that the father had minimal contact with the child prior to the death of her mother
and the child was, for all practical purposes, reared by Mrs. Blackburn. We also recognize that there
is proof that the child sang a pornographic song at school and told the teacher she had learned it from
her father, which he denied. The Trial Court obviously discounted this contention by his action in
awarding custody to Mr. Kyzer.

       The Trial Court specifically found that “there had been no showing of substantial risk of
harm to the child” should custody be awarded to her father.

       Given the deference accorded a Trial Court as to the credibility of witnesses, the reports of
two therapists, and the recent pronouncement of our Supreme Court in Eldridge v. Eldridge, 42
S.W.3d 82 (Tenn. 2001), hereinafter set out, relative to visitation, which we believe would equally
apply to custody, we conclude when tested by Tenn. R. App. P. 13 that the evidence does not
preponderate against the Trial Court’s finding of fact and it did not abuse its discretion in awarding
custody. We conclude this is an appropriate case for affirmance under Rule 10 of this Court.

                  It is not the function of appellate courts to tweak a visitation order in the
         hopes of achieving a more reasonable result than the trial court. Appellate courts
         correct errors. When no error in the trial court's ruling is evident from the record,
         the trial court's ruling must stand. This maxim has special significance in cases
         reviewed under the abuse of discretion standard. The abuse of discretion standard
         recognizes that the trial court is in a better position than the appellate court to
         make certain judgments. The abuse of discretion standard does not require a trial
         court to render an ideal order, even in matters involving visitation, to withstand
         reversal. Reversal should not result simply because the appellate court found a
         "better" resolution. See State v. Franklin, 714 S.W.2d 252, 258 (Tenn.1986)
         ("appellate court should not redetermine in retrospect and on a cold record how
         the case could have been better tried"); cf. State v. Pappas, 754 S.W.2d 620, 625
         (Tenn. Ct. Crim. App.1987) (affirming trial court's ruling under abuse of
         discretion standard while noting that action contrary to action taken by the trial
         court was the better practice); Bradford v. Bradford, 51 Tenn. Ct. App. 101, 364
         S.W.2d 509, 512-13 (1962) (same). An abuse of discretion can be found only
         when the trial court's ruling falls outside the spectrum of rulings that might
         reasonably result from an application of the correct legal standards to the evidence
         found in the record. See, e.g., State ex. rel Vaughn v. Kaatrude, 21 S.W.3d 244,
         248 (Tenn. Ct. App.2000).

        Mr. Kyzer’s request that Mrs. Blackburn’s appeal be declared frivolous is denied.




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        For the foregoing reasons the judgment of the Trial Court is affirmed and the cause remanded
for collection of costs below. Costs of appeal are adjudged against Mrs. Blackburn and her surety.



                                              _________________________________________
                                              HOUSTON M. GODDARD, PRESIDING JUDGE




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