                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON

                                   January 20, 2005 Session

        STEPHANIE TODD WATSON v. TIMOTHY JAMES WATSON

                 An Appeal from the Chancery Court for Henderson County
                           14991 James F. Butler, Chancellor


                    No. W2004-00633-COA-R3-CV - Filed August 24, 2005


This case is about parental relocation and child custody. The parents of a minor child divorced in
2001. Both parents lived in Lexington, Tennessee, and, at the time of the divorce, agreed to joint
custody. The child alternated daily between the parents’ homes. In 2002, the mother remarried and
moved to Murfreesboro, Tennessee. The mother petitioned the court to designate her as primary
residential parent and allow her to move the child with her to Murfreesboro. The father opposed the
petition and asked the court to designate him as the primary residential parent. The trial court found
that it was in the child’s best interest to move to Murfreesboro with the mother, and designated her
as primary residential parent. The father appealed. We affirm, finding that the evidence does not
preponderate against the trial court’s decision to designate mother as primary residential parent and
permit the child to move with her.

  Tenn. R. App. P. 3 Appeal as of Right; the Judgment of the Chancery Court is Affirmed

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which W. FRANK CRAWFORD , P.J.,
W.S., and ALAN E. HIGHERS, J., joined.

Harold F. Johnson, Jackson, for defendant/appellant Timothy James Watson

Betty Stafford Scott, Jackson, and Mary Jo Middlebrooks, Jackson, for plaintiff/appellee
Stephanie Todd Watson

                                             OPINION

        Plaintiff/Appellee Stephanie Todd Watson (“Mother”) and Defendant/Appellant Timothy
James Watson (“Father”) had a son, Christian, born July 7, 1997. They were married on June 18,
1998, and lived in Lexington, Tennessee.

       On August 30, 2001, Mother and Father were granted a divorce on the grounds of
irreconcilable differences. At the time of the divorce, Mother and Father agreed to a permanent
parenting plan (“Plan”). The Plan, incorporated into the marital dissolution agreement, granted
Mother and Father joint custody of Christian, and stated that Mother and Father would alternate
physical custody of Christian on a daily basis, that neither party would pay child support to the other,
and that major decisions regarding the child would be made jointly. Disagreements about joint
decisions or modifications of the Plan were to be handled through mediation.

       In June 2002, Mother remarried. Thereafter, in April 2003, Mother filed a petition in the
Henderson County Chancery Court, indicating that she planned to relocate to Murfreesboro,
Tennessee, and wanted Christian to move with her. Father did not agree to permit Christian to move.
Mother and Father attempted to resolve their issues through mediation, as required by the Plan, but
were unsuccessful in resolving the issues of a change in custody and the parenting schedule for the
non-custodial parent. The petition asked the trial court to enter an order on an interim parenting plan.

        The revised parenting plan submitted by Mother provided that the child would reside with
Mother during the week and with Father on every weekend while the child was playing T-ball1 and
every other weekend after T-ball season ended. Mother’s proposed revised parenting plan designated
Mother as the primary residential parent and granted Mother the sole authority to make major
decisions regarding the child.

        In June 2003, Mother petitioned the court to adopt her proposed Revised Plan as the
permanent parenting plan and appoint her as the primary residential parent. The petition stated that
Mother was relocating to Murfreesboro in order to take a significantly better employment position,
and, as a result of the move, the parties’ original parenting schedule of rotating physical custody every
other day would no longer be feasible. Mother and Father agreed to an interim parenting schedule
until a hearing could be held on the matter.

        Also in June 2003, Father proposed to the trial court his own revised parenting plan, which
designated him as the primary residential parent. Father’s proposed plan provided that the child
would reside with him during the school year with Mother having residential parenting time on
alternative weekends, excluding T-ball season. Father’s petition asked the trial court to require that
Mother pay Father child support based on her income and requested that major decisions regarding
the child be made jointly. Like Mother’s petition, Father’s proposed petition noted that the original
parenting plan would no longer be feasible due to Mother’s relocation to Murfreesboro. A hearing
on the matter was held on July 3, 2003 in the Chancery Court for Henderson County.

        At the hearing, Mother testified that she had searched for a job in the Lexington, Tennessee
area for about a year before accepting the job in Murfreesboro. Mother said that she accepted the
Murfreesboro job because it was in her field, the salary was higher, and it had a flexible schedule,
which would allow her take care of Christian when the need arose. Mother testified that she chose
the specific neighborhood in Murfreesboro based on her internet search for good schools in the area.
The report from the internet was entered into evidence at the hearing, over Father’s objection.


         1
             Father apparently coached Christian’s T-ball team.

                                                          -2-
        Mother acknowledged that her current husband, John “J. P.” Patterson, was from middle
Tennessee, had extended family in middle Tennessee, including a child, and was living and working
in middle Tennessee when they met. She maintained that these facts had no bearing on her choice
to accept a job in Murfreesboro and move there. Mother also conceded that, in Lexington, Father
lived in the home in which the parties lived when Christian was born, attended the church in which
Christian was baptized, and that both Mother and Father had extended family in the Lexington area.
Mother noted that one of her sisters had moved to Murfreesboro.

        Mother testified that, since Christian was born, she had been his primary caregiver, and that
she was the parent who took him to doctor’s appointments, took off work to be with him during two
surgeries, and taught him to swim and ride a bike. She attended Christian’s school functions and
Christian was close to her parents and grandparents.

        During the marriage, Mother testified, Father physically abused her and she was afraid of him.
Mother conceded that she did not confide in anyone about the alleged abuse until close to the time of
the divorce.

       During the hearing, Mother was asked why she had agreed to the original shared parenting
plan, which provided for joint custody. Mother explained:

       At the time my concern was protecting me and Christian. I felt like because of
       [Father’s] history as far as the violent behavior toward me– Honestly I was very scared
       of him. I felt like if I could reach an agreement with him that would not set him off,
       that that would be in the best interest of all of us to just – for me – to suck it up and do
       it so that Christian and I could move on.

       In her testimony, Mother described an incident that occurred after the divorce. On one
occasion, the parties were arguing while Mother was putting Christian in the car. Father kicked the
car door, closing it on Mother’s legs and injuring her shins. Mother called the sheriff and, as a result,
Father was arrested. Mother subsequently dropped the charges, but nevertheless obtained a restraining
order against Father.

        Mother also testified about Father’s care for Christian. Mother said that, after the divorce,
Father took Christian to daycare at times when he had fever, and that Father would often call Mother
to pick up Christian, even though it was his turn to do so. Mother said that, when Christian was with
Father, Christian, rather than Father, would decide whether or not Christian would take a bath that day.
Mother observed that Father and Christian usually ate hamburgers or pizza.

       Mother was asked about why she wanted to change the parenting plan. Mother stated:

       . . .[A]fter the first of the year, after the first of this year, I had decided that with school
       approaching that Christian needed a more regular schedule than this every other day.
       And in light of everything else, I believed myself to be the primary caregiver and the

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       person that should be responsible for him. I was going to seek out full custody. It just
       so happens the timing thing moved – bumped everything up a little bit.

       Father testified at the hearing as well. During his testimony, Father denied physically abusing
Mother. Father acknowledged, however, being arrested for slamming the car door on Mother after the
divorce. He admitted that, as a result of the incident, an order of protection was issued against him,
which was later extended for a period of one year. Still, Father maintained that he never intended to
harm Mother.

       Father denied that he often asked Mother or others to pick up Christian from day care when it
was his turn to do so. He also denied that he had taken Christian to day care when he was running a
fever. Father testified that Christian ate healthy food when he was with him.

         Father stated that Christian had become closer to his extended family since Mother and Father
divorced. He said that, if he were designated the primary residential parent, his mother, brother, and
sister-in-law would be available to help him care for Christian. Father testified that Christian often
expressed his desire to live with Father in Lexington.

       After hearing all of the testimony, the judge made the following findings:

       It appears that the parties divorced in August of 2001 and had a marital dissolution
       agreement at that time, and a permanent parenting plan that provided for basically split
       time, alternating the days and then also alternating the weekends. It’s worked well up
       until now. The mother has remarried. She has moved to Murfreesboro. This change
       of circumstances makes this plan that they had agreed on unworkable. The child also
       starting school pretty soon also makes the plan unworkable. Both parties seek to have
       the new parenting plan designation of primary residential parent.

      The trial court noted that, in making its decision, it relied on section 36-6-108 (c) of the
Tennessee Code Annotated,2 which is applicable when the parents spend substantially equal parenting


         2
             Subsection c of T.C.A. § 36-6-108 states:
              If the parents are actually spending substantially equal intervals of time with the child and the
              relocating parent seeks to move with the child, the other parent may, within thirty (30) days of
              receipt of notice, file a petition in opposition to removal of the child. No presumption in favor of
              or against the request to relocate with the child shall arise. The court shall determine whether or not
              to permit relocation of the child based upon the best interests of the child. The court shall consider
              all relevant factors including the following where applicable:
              (1) The extent to which visitation rights have been allowed and exercised;
              (2) W hether the primary residential parent, once out of the jurisdiction, is likely to comply with
              any new visitation arrangement;

              (3) The love, affection and emotional ties existing between the parents and child;
                                                                                                                (continued...)

                                                             -4-
time with the child. The statute governs the potential relocation of the child with a relocating parent,
based upon the best interests of the child. T.C.A. § 36-6-108(c) (2001). The trial court stated:

       The Court has to look to the best interest of the child. It is essentially a determination
       of the primary residential parent of this child. The Court is directed in the statute to
       consider the same statutory factors that the Tennessee Code sets out that the Court
       should consider in setting custody initially. The factors are exactly the same. The
       Court has considered the parents’ parenting skills, their respective situations, their
       comparative fitness as to potential primary residential parents. I considered the
       existence and the nonexistence – or the nonexistence of a nuclear family. I’ve looked
       at who had been the primary caregiver over the child’s short life-span – he’s five –
       about five and a half, almost six – and who was the one who primarily looked to see
       the child’s needs were taken care of.

       Since the divorce it’s been about equal. Before the divorce I think that the mother was
       the primary caregiver, mother did it mostly; not to say that the father did not perform
       well in taking care of his child prior to the divorce. It just appeared that the mother was
       the one that was on the ground doing most of the stuff, getting appointments, doing the
       things that mothers do so – And she did a good job. And that doesn’t mean he did a
       bad job. He did a good job, too.

       When things like that come to Court, basically the Court has to look at it like this is my
       child, I’m the child’s father. The child is legally a ward of the Court once a divorce is
       filed, and it’s as if I cannot take care of my own child and I have to decide where I’m



       2
           (...continued)
                (4) The disposition of the parents to provide the child with food, clothing, medical care,
                education and other necessary care and the degree to which a parent has been the primary caregiver;
                (5) The importance of continuity in the child's life and the length of time the child has lived in a
                stable, satisfactory environment;
                (6) The stability of the family unit of the parents;
                (7) The mental and physical health of the parents;
                (8) The home, school and community record of the child;
                (9) 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 preferences of older children should
                normally be given greater weight than those of younger children;
                (10) Evidence of physical or emotional abuse to the child, to the other parent or to any other
                person; and
                (11) 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
 T.C.A. § 36-6-108(c) (2001).




                                                           -5-
       going to place this child for a long period of time. And I’ve only got two people to
       choose from in the whole world. And so I’ve got the father and I’ve got the mother.

       The mother has moved. We live in a mobile society. People move around all the time.
       People change jobs, people move their residences. Children adjust. . . .

       The best interest of the child is to move with the mother and to be primarily with her
       during the school year. The best interest of the child is to be with the father primarily
       during the summer months.

By order dated December 17, 2003, the court granted Mother’s motion to modify the parenting plan
and appointed Mother as the primary residential parent. Further, the court allowed Mother to have
Christian move with her to Murfreesboro. From this order, Father now appeals.

         Father raises eleven issues on appeal, which we will consolidate and restate. Father asserts that
the trial court treated the case as a custody determination instead of a parental relocation matter, and
consequently that the trial court applied the wrong legal standard. He contends that the trial court erred
in concluding that one of the parties had to be designated as primary residential parent. Father asserts
that the trial court erroneously permitted evidence of the parties’ behavior prior to the divorce, allowed
unauthenticated information obtained over the internet to be entered into evidence, and contends that
the trial court failed to consider Christian’s preference that he live with Father. Finally, Father argues
that the issue of custody had been decided in the parties’ marital dissolution agreement, incorporated
into the divorce decree, and was res judicata absent a material change in the child’s circumstances,
and that the evidence preponderates against the trial court’s designation of Mother as the primary
residential parent.

         Since this case was tried by the trial court sitting without a jury, we review the trial court’s
factual findings de novo accompanied by a presumption of correctness unless the preponderance of the
evidence is otherwise. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Tenn. R.
App. P. 13(d). For the evidence to preponderate against a trial court's finding of fact, it must support
another finding of fact with greater convincing effect. Walker v. Sidney Gilreath & Assocs., 40
S.W.3d 66, 71 (Tenn. Ct. App.2000); The Realty Shop, Inc. v. R.R. Westminster Holding, Inc., 7
S.W.3d 581, 596 (Tenn. Ct. App.1999). The trial court’s legal conclusions are reviewed de novo with
no presumption of correctness. Campbell, 919 S.W.2d at 35. A trial court’s custody determination
is also reviewed de novo with a presumption of correctness as to the trial court’s findings of fact unless
the evidence preponderates against these findings. Tenn. R. App. P. 13(d). Neves v. Neves, 2004 WL
2866974, *2 (Tenn. Ct. App. Dec. 13, 2004).

        On appeal, Father first asserts that the trial court treated the case as a custody determination
rather than a parental relocation, and that this was error. Father bases this assertion on a remark by the
trial court during opening statements that it was “going to have to rule on what basically is a change
of custody basically on either side.” During the hearing, counsel and the trial judge engaged in



                                                   -6-
extensive discussion of whether this was a custody determination or a parental relocation case or both.
The following colloquy took place:

        MR. JOHNSON: I do want to be understood . . . that we are on the issue of parental
        relocation. We’re not on the original – on the original custody.
                                                  ***
        MS. SCOTT: Your Honor, . . . the same factors that are considered in the relocation
        statute are also considered in the comparative fitness analysis.
        THE COURT: Well, I’ve looked at the statute quite a bit and the things that the court
        is to look at in determining a case under Section C. . . .
                 [A]t this point in time I’m considering it to be a custody case arising out of a
        parental relocation filing. I’ve got to determine whether or not to allow the child to
        move with the mother or to have the child stay here with the father.

After the hearing, the trial court reiterated, as detailed above, that it was relying on the factors set forth
in T.C.A. § 36-6-108(c), the parental relocation statute, to make its decision. Thus, it is clear that the
trial court, in fact, considered the case to be a parental relocation case and applied the appropriate legal
standard. As such, we find no error.

        Father also contends on appeal that the trial court erred in concluding that one of the parties
would have to be designated as primary residential parent. This is somewhat puzzling, since both
parties requested in their pleadings to be designated as primary residential parent. Moreover, at the
time of the hearing, Mother had already moved to Murfreesboro, approximately a two-hour drive from
Lexington. Clearly the parties could not continue their unusual arrangement of alternating physical
custody daily. We find that the trial court, in its remarks, was merely stating the obvious, and his
comments do not reflect application of an erroneous legal standard.

       Father also contends on appeal that the trial court erred in allowing testimony regarding facts
and circumstances that occurred prior to the entry of original permanent parenting plan. Issues
regarding admission of evidence in Tennessee are reviewed under an abuse of discretion standard.
Dickey v. McCord, 63 S.W.3d 714, 723 (Tenn. Ct. App. 2001). Since there had never been a court
hearing on the residential parenting arrangement for Christian, the trial court indicated that this
testimony provided necessary background, and we find no error in this determination.

         Father asserts that the trial court erred in allowing into evidence Mother’s report on the quality
of schools in the Murfreesboro area, taken from a web site called www.greatschools.net. Father argues
that this was not properly authenticated and thus not admissible. Mother testified that she used this
information, in part, to select a school for Christian and to ensure that she found a home in that school
district. The trial court allowed the report into evidence, observing that “schools, government,
everybody else posts information on the internet.” Under the abuse of discretion standard of review,
as noted above, we find this argument without merit. Dickey v. McCord, 63 S.W.3d 714, 723 (Tenn.
Ct. App. 2001).



                                                     -7-
         Father further contends that the trial court erred in failing to give enough weight to the
preference of the six year old child. Father testified that Christian had told him on numerous occasions
that he preferred to stay with Father. Under section 36-6-108 (c) (9) of the Tennessee Code Annotated,
a trial court shall consider 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.” T.C.A. § 36-6-108 (c) (9) (2001).
The child’s preference is only one factor and the “paramount consideration in a custody case is the best
interest of the child.” Harris v. Harris, 832 S.W.2d 352, 353 (Tenn. Ct. App. 1992) (citing Bah v.
Bah, 668 S.W.2d 663, 665 (Tenn. Ct. App. 1983)). The trial court permitted Father’s testimony on
Christian’s statements to him about preferring to stay in Lexington with Father. There is no indication
that the trial court did not accord appropriate weight to the evidence. This argument is without merit.

        Father also argues that, once the parties had agreed in the marital dissolution agreement that
they would share joint custody and alternate physical custody daily, the issue is res judicata and
Mother cannot seek a change in custody absent a material change in the child’s circumstances. This
argument is also perplexing. At the time of the hearing, Mother had remarried, accepted a job in
Murfreesboro and moved. Maintaining the same parenting arrangement, with the parties living two
hours apart, was not a feasible option as evidenced by the parties’ competing petitions to be designated
primary residential parent. The parental relocation statute expressly provides the mechanism for a
relocating parent to petition for permission to have the child relocate with the parent, and sets forth
the standard to be applied in such a circumstance. This is precisely what the trial court did. We find
no error in this.

        Finally, Father contends that the trial court erred in designating Mother as the primary
residential parent. Indeed, the resolution of this issue is difficult. Under the joint custody
management, both Mother and Father had been caring, involved parents and an active part of
Christian’s daily life. However, Mother’s relocation and Christian’s entry into grade school rendered
retention of the existing schedule impossible. The trial court was forced to choose between two loving
parents, both of whom wanted to be designated primary residential parent. The trial court determined
that Mother should be designated as primary residential parent and have Christian reside primarily with
her during the school year. It decided that Christian would reside primarily with Father during the
summer. Each parent would have residential parenting time when Christian is residing primarily with
the other parent. The trial court made this determination based on the factors it discussed above. For
this Court to overturn the trial court’s decision, the facts before us must support Father’s proposed
finding with greater convincing effect. Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn.
Ct. App. 2000); Realty Shop, Inc. v. R.R. Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct.
App. 1999); Neves v. Neves, 2004 WL 2866974, *2 (Tenn. Ct. App. Dec. 13, 2004). After a careful
review of the evidence, with deference to the fact that the trial court observed the parties’ testimony
and demeanor, we cannot conclude that the evidence preponderates against the trial court’s decision
to designate Mother as primary residential parent and to permit Christian to relocate with her to
Murfreesboro.




                                                   -8-
      The decision of the trial court is affirmed. Costs of this appeal are taxed to the appellant,
Timothy James Watson, for which execution may issue, if necessary.



                                                           _______________________________
                                                           HOLLY M. KIRBY, JUDGE




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