                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                               September 15, 2009 Session

     ALANNA CHRISTY DANIELS HOWE, v. JOHN ASHLEY HOWE

               Appeal from the Chancery Court for Hamilton County
               No. 07-0768   Hon. W. Franks Brown, III., Chancellor


             No. E2008-02580-COA-R3-CV - FILED JANUARY 28, 2010




In this divorce action, after a long and contentious trial, the Trial Court awarded the mother
the divorce and awarded custody of the parties' minor child to the father. The sole issue on
appeal by the mother is the award of custody to the father. We affirm the Judgment of the
Trial Court.


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


H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., J., and. D. M ICHAEL S WINEY, J., joined.


Selma Cash Paty, Chattanooga, Tennessee, and Pamela O'Dwyer, Chattanooga, Tennessee,
for the appellant, Alanna Christy Daniels Howe.

Fred T. Hanzelik, Chattanooga, Tennessee, for the appellee, John Ashley Howe.


                                         OPINION


        Plaintiff, mother brought this action for divorce against defendant, father, alleging
the parties have one child who was born on September 21, 2005. The Complaint alleged an
affair by the father with an unstable woman, and that he had been mentally cruel to the
mother. The Complaint sought custody of the minor child, and a Motion for Temporary
Alimony and Child Support was filed.
        The father filed a Motion to Set Visitation, alleging the mother had refused to allow
visitation, and a few months later, the father filed a Motion to Compel, stating he had been
denied visitation rights given to him by the Court, and also requested overnight visitation.
Following a hearing on the motion, the father was granted certain visitation times with the
child, gradually increasing to alternating weekends.

        In August 2008, the mother filed a Motion for Permission to Move Child, asking the
Court for permission to move with the child to Tampa, Florida or Knoxville, Tennessee,
stating that her father’s health was worse, and that he had been diagnosed with aggressive
cancer. She also filed a Motion to Amend Complaint to Show Cause and for Contempt,
asserting the father had recently assaulted her. The father objected to the Motion, because
it was filed one day prior to the trial.

       The father filed an Answer on the first day of the parties’ trial, and the father’s
counsel admitted that when reviewing the pleadings, he realized that he inadvertently failed
to respond to the Complaint. The mother’s counsel moved for default judgment, and the
Court overruled the motion, observing that the case was “hotly contested on numerous issues
since early on”, and that a motion for default could have been filed earlier if that was an
issue. The parties stipulated the mother had grounds for a divorce from the father.

      The evidentiary hearing lasted several days with numerous witnesses, and the Trial
Judge allowed the parties to repeatedly testify.

       Subsequently, the Court entered a Memorandum Opinion and Order, stating the case
had many issues. The Court then denied the mother’s motion seeking to amend the
pleadings, finding that this was an attempt to circumvent the 60 day notice to relocate
required by the parental relocation statute. The Court granted a divorce to the mother, based
on the father’s stipulation that she had grounds for divorce.

       In denying the mother’s request to relocate, the Court said the fact that she had not
complied with the requirements of the statute, and because she had no employment in Tampa,
Florida, also the mother might be trying to move the child away from the father, was ample
grounds to deny her motion.

       The Court then discussed the considerations involved with naming the primary
residential parent for the minor child, and made specific findings regarding each of the
factors listed in Tenn. Code Ann. §36-6-366. The Court found the mother had been the
primary care giver for the child since birth, but that both parties clearly loved the child and
wanted to be with her. The Court stated that it had serious questions about the mother’s
credibility and stability, especially based on her screaming episodes in the child’s presence.

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The Court stated a concern about Ms. Howe’s mother, and that her actions towards the father
in the presence of the child were “despicable”. The Court stated that people attending the
trial in support of the mother acted inappropriately, and cited examples.

       The Court stated the father won “hands down” on the tenth factor, which had to do
with a parent encouraging and facilitating the other parent’s relationship with the child, and
noted that the mother had tried to get the father arrested on more than one occasion. The
Court found the mother had deprived the father of visitation time with the child for no good
reason, and that the mother and her mother had said inappropriate things to the father in the
child’s presence.

       The Court stated that it had examined all the factors in the statute, and that most of
them did not favor one parent over the other, but the mother had arguably caused emotional
abuse to father and the child, and that the mother lost heavily on the factor in subsection
(a)(10).

        The Court designated the father as primary residential custodian of the child, and
expressed confidence that the father would keep the terms of a parenting plan and would
foster the child’s love for both parents, whereas the mother would not. The Court concluded
that the mother would have 65 days per year with the child, as she proposed for the father.

       The Court then discussed the mother’s lack of credibility, stating that the mother
refused/failed to respond to certain questions, that she produced outdated financial
documents, and that she was evasive about some issues. The Court said the mother’s anger
over the father’s infidelity had caused her to “fudge” the truth and use the child as an
instrument of punishment.

       The mother then filed a Motion for Stay and to Alter/Amend Parenting Time, stating
that until the day the trial started, the father had not filed an answer and the mother had no
idea that the primary parenting assignment was an issue. She alleged that she was not
prepared at trial to defend the parenting issue, and that it was not in the child’s best interest
to be separated from her. The father also filed a Motion to Amend, and the Court then
entered an Order, finding the father filed an Answer on the first day of trial, after the
mother’s counsel made an oral motion for default judgment. The Court stated that, based on
the amount of work put into the case by both parties, it was clearly contested, and thus
default was inappropriate.

      The Court found the mother also claimed that she had no notice that her status as
primary residential parent was at issue, but noted that the father had asked for the child to
remain in Tennessee with him if the mother relocated in his response to her petition, and

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denied that the mother should have custody in his Answer. The Court further observed that
as the trial progressed, it was obvious that the father should be the PRP, and that much of the
evidence which aided in this decision was from recent events. The mother then filed a
Notice of Appeal.

      The Court had allowed yet another evidentiary hearing on the post-trial motions,
which evidence is in the record.

      The issue raised on appeal by the mother is: Whether the Court erred in awarding
primary residence to the father/appellee?

       The mother first argues that she had a lack of notice that the father was pursuing
custody. This argument is disingenuous, however, since the parenting issues were hotly
contested from the very beginning, as evidenced by the voluminous pleadings filed prior to
trial. While it is true the father did not file his answer denying that the mother was the
proper custodian of the child until the morning of trial, the Trial Court found that default
judgment was improper, stating “it’s been obvious to everyone that this case has been hotly
contested on numerous issues since early on, and the motion could have been made earlier”.

       Moreover, the issue of custody was a constant theme throughout the entire trial, and
most of the mother’s testimony seemed directed toward painting the father as a “bad person”,
and the Court and counsel repeatedly referenced the custody issue during the course of the
trial.

        The mother cites the Keisling case in support of her argument regarding notice, but
that case is not similar, because in Keisling the Supreme Court found that there was no notice
that custody could be changed, as change in custody was not expressly or impliedly tried.
Keisling v. Keisling, 92 S.W.3d 374 (Tenn. 2002). In this case custody was expressly tried,
and the father clearly testified that he at least wanted a joint or shared custody arrangement.
This was expressed at trial and at a prior motion hearing. At some point early in the trial, the
Trial Court made a statement on a relevance objection that all the evidence relating to issues
regarding the child, including custody, was relevant.

       Finally, the mother argues that if she had known custody was an issue, she would have
presented witnesses that she presented at the post-trial hearing, presumably to testify that she
was a good mother. The father admitted at trial that the mother was a good mother. He
simply gave examples of incidents where she “lost it” in front of the child or where her
behavior seemed inappropriate and detrimental to the child. This trial spanned several days,
and assuming arguendo that she did not realize that custody was an issue until the answer
was filed or even until the trial began, she had ample time to call more witnesses on her own

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behalf. Her arguments is not persuasive and we find it has no merit.

        Next, the mother argues that custody was improperly granted to the father based upon
the evidence, and that the Trial Court did not adequately consider all of the statutory factors.
The parties agree that custody determinations are reviewed under an abuse of discretion
standard (see, e.g., Herrera v. Herrera, 944 S.W.2d 379 (Tenn. Ct. App. 1996)), and that the
trial court’s decision should thus be upheld so long as “reasonable minds can disagree as to
propriety of the decision made.” Eldridge v. Eldridge, 42 S.W.3d 82 (Tenn. 2001). Further,
a trial court abuses its discretion only when it “applie[s] an incorrect legal standard, or
reache[s] a decision which is against logic or reasoning that cause[s] an injustice to the party
complaining.” State v. Shirley, 6 S.W.3d 243 (Tenn. 1999).

        The factors to be considered in making a custody decision are enumerated in Tenn.
Code Ann. §36-6-106. In this case, it is clear that both parents greatly love the child and that
both have strong emotional ties with her. The mother was the primary care giver until the
time of the custody change. As the marital home was to be sold at the time of the divorce,
the child would not have remained in the same home whichever parent she resided with after
the divorce, and the father would keep her in the same community, as he had no plans to
relocate.

       The Court found the mother was guilty of some form of emotional abuse, as listed in
factor 8 of the statute. Factor 10 was the biggest determining factor for the Court, and it
appears that the Court’s finding in this regard was appropriate, i.e. while both parents were
willing to care for the child, it would appear that the father is more willing to facilitate a
close and continuing relationship with the child and the mother than the mother was willing
to do for the father. While factor 10 is not the most important or only factor to consider, it
is important in deciding which parent is more fit to take on the primary role. Morman v.
Morman, 2006 WL 2068757 (Tenn. Ct. App. July 25, 2006).

        In some respects, this case is similar to the Morman case. Here the Trial Court had
to sift through a great deal of disparaging information about both parents, and ultimately
determined that factor 10 was most significant. The Court determined that the mother’s
credibility was questionable, and that she would likely thwart the child’s relationship with
the father in spite of the Court’s orders, while the father was more likely to follow the
Court’s orders, and that the child's best interest would be served by naming the father primary
residential parent.

       With deference to the Trial Judge on the issue of credibility, the evidence does not
preponderate against the Trial Court’s findings, and the mother has not demonstrated that the
Trial Court abused its discretion in awarding primary custody to the father. Tenn. R. App.

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P. 13(d).

      Finally, while the mother did not identify as an issue at the beginning of her brief that
she was entitled to attorney's fees on appeal, there is no basis for this award, however, since
the mother did not prevail on the appeal. This issue is without merit.

      The Trial Court's Judgment is affirmed and the cost of the appeal is assessed to
Alanna Christy Daniels Howe, and the cause remanded.




                                                    _________________________________
                                                    HERSCHEL PICKENS FRANKS, P.J.




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