                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                    October 11, 2005 Session

             JAMES ROSS KEITH v. JORDAN ASHLEY SURRATT

                        Appeal from the Circuit Court for Wilson County
                                No. 12746   C.L. Rogers, Judge



                    No. M2004-01835-COA-R3-CV - Filed January 31, 2006


In this child custody case, Father appeals and argues that the trial court erred in awarding Mother
primary residential custody of the parties' twin minor children. Mother also appeals and argues that
the trial court erred in setting Father's child support, in failing to assess her attorney's fees against
Father, and in changing the children's surname to that of Father. After careful review of the evidence
and applicable authorities, we find no error and affirm the judgment of the trial court in all respects.


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

SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and
CHARLES D. SUSANO , JR., J., joined.

Frank Lannom, Lebanon, Tennessee, for the appellant, James Ross Keith.

Stephen W. Pate, Murfreesboro, Tennessee, for the appellee, Jordan Ashley Surratt.

                                              OPINION

                                                   I.

        James Ross Keith, ("Father") and Jordan Ashley Surratt, ("Mother"), were married on
February 14, 2002. The parties’ marriage was short-lived and was annulled by order entered June
19, 2002. After the marriage was annulled, Mother briefly resided with another couple. However,
within a short time, Mother and Father reunited, and, although they did not remarry they resumed
living together from August 2, 2002, until November 6, 2002. During this latter period of time,
Mother became pregnant with the parties’ children.

       After the parties separated on November 6, 2002, Mother moved to Savannah, Georgia,
where she resided with her father and stepmother. On April 15, 2003, Mother gave birth to twins,
Tucker Chatham Surratt and Savannah Ashton Surratt1. On April 18, 2003, Father was informed of
the birth, and he traveled to Savannah and submitted to a DNA test on April 30, 2003. On May 12,
2003, Father received the results of the test which confirmed that he was the twins’ biological father.

        On May 14, 2003, Father petitioned the Circuit Court of Wilson County, Tennessee for
legitimation and custody of the twins upon allegations that, inter alia, Mother had taken illegal drugs
during her pregnancy and that she was not capable of providing the twins with necessary care. On
that same date, a restraining order was entered by presiding judge, Honorable Clara Byrd, decreeing
that Mother give Father immediate custody of the twins and restraining Mother from coming around
Father’s residence pending further order of the court. The court also ordered that Mother appear
before it on May 23, 2003, and show cause why Father’s petition should not be granted.

         On May 22, 2003, Mother filed a motion disputing the trial court’s venue and requesting that
the restraining order be set aside pending a hearing upon that issue and that the show cause hearing
be continued. The motion also noted the employment of Father’s father, Gary Keith, as head of
courtroom security in Wilson County and requested that the court make a determination as to any
potential conflict of interest or appearance of impropriety with respect to Father’s case being heard
by that court.

        On August 15, 2003, Judge Byrd recused herself from the case. However, the restraining
order of May 14, 2003, was not stayed, and custody of the twins was transferred to Father on August
15, 2003.

        In consequence of Judge Byrd’s recusal, an order was entered by the Tennessee Supreme
Court on August 29, 2003, pursuant to which the case was assigned to the Honorable C.L. Rogers
as special judge from another district. Thereafter, Mother filed notice striking her motion to dismiss
and submitting to the jurisdiction of the Wilson County Circuit Court based upon her stated intent
to reside in Wilson County permanently.

       On September 8, 2003, Mother filed a motion requesting that the restraining order of May
14, 2003, be set aside; that she be vested with primary residential care of the parties’ twin minor
children subject to Father’s reasonable visitation; and that Father pay child support consistent with
the Tennessee Child Support Guidelines.

        By order entered September 30, 2003, after a hearing on September 17, 2003, inter alia the
trial court decreed that the order of May 14, 2003 be set aside in its entirety, that Mother receive
primary custody of the parties’ minor twin children pendente lite subject to specified visitation by
Father, and that Father pay child support in the amount of $608.00 per month.




         1
          At the time of birth the twins were given the last name “Surratt”; however, this was subsequently changed to
“Keith” as noted below.

                                                         -2-
       On October 14, 2003, Mother responded to Father’s original petition of May 14, 2003, by
answer and counter-petition wherein she requested, among other things, that she be vested with
primary custody of the twins and that Father be required to pay child support and be jointly
responsible for the children’s healthcare expenses.

        The case came on for trial on June 24 and 25, 2004, after which, on July 13, 2004, the trial
court entered its final order. The order recited the parties’ agreement that Father is the natural father
of the twin minor children. Based upon various stated findings of fact, the trial court granted the
parties joint custody of the twins and vested primary residential responsibility of the twins with
Mother. The order further required that Father pay child support in the amount of $476 per month
effective July 15, 2004, based upon a gross annual salary of $26,000. The order also decreed that
the twins’ surname be changed to “Keith” and that each party be responsible for his or her own
attorney’s fees with court costs being assessed to Father. Father appeals.

                                                   II.

        The issues addressed in this appeal are restated as follows:

       1. Whether the evidence preponderates against the trial court’s ruling vesting Mother, rather
than Father, with primary residential responsibility of the parties’ minor twin children.

        2. Whether the trial court erred in setting the amount of child support to be paid by Father.

        3. Whether the trial court erred in changing the children’s surname to “Keith.”

       4. Whether the trial court abused its discretion in failing to require Father to pay Mother’s
attorney’s fees.

                                                  III.

        Our review of the trial court’s conclusions of law is de novo upon the record with no
presumption of correctness. Kendrick v. Shoemake, 90 S.W.3d 566, 569-570 (Tenn. 2002). Our
review of the trial court’s findings of fact is de novo upon the record accompanied by a presumption
of correctness unless the evidence preponderates to the contrary. Tenn. R. App. 13(d); Bogan v.
Bogan, 60 S.W.3d 721, 727 (Tenn. 2001).

                                                  IV.

                                                   A.

        The first issue we address is whether the trial court erred in placing primary residential
responsibility of the parties’ minor twin children with Mother rather than Father. Applying the
above standard of review in addressing this issue, we bear in mind that “[t]rial courts are vested with


                                                  -3-
wide discretion in matters of child custody and the appellate courts will not interfere except upon
a showing of erroneous exercise of that discretion.” Koch v. Koch, 874 S.W.2d 571, 575 (Tenn. Ct.
App. 1993). We further note that because “[c]ustody and visitation determinations often hinge on
subtle factors, including the parents’ demeanor and credibility during [trial],” appellate courts “are
reluctant to second-guess a trial court’s decisions.” Gaskill v. Gaskill, 936 S.W.2d 626,631 (Tenn.
Ct. App. 1996).

         The paramount consideration in a child custody case such as this one is the best interest of
the child in light of the comparative fitness of the parents. In re C.K.G., 173 S.W.3d 714, 732 (Tenn.
2005). As provided by Tenn. Code Ann. § 36-6-106, a court is required to consider “all relevant
factors” in making a custody determination, including the following which we find to be pertinent
in this case:

                (1) The love, affection and emotional ties existing between
                the parents and child;
                (2) 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;
                (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;
                (5) The mental and physical health of the parents;
                (6) The home, school and community record of the child;

                                               ...

                (8) Evidence of physical or emotional abuse to the child, to
                the other parent or to any other person; ... .
                (9) 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; and
                (10) Each parent’s past and potential for future performance
                of parenting responsibilities, including the willingness and
                ability of each of the parents to facilitate and encourage a
                close and continuing parent-child relationship between the
                child and the other parent, consistent with the best interest of
                the child.

        In its final order of July 13, 2004, the trial court indicated that it considered the above
statutory factors in conducting a comparative fitness analysis in this case and relative to that analysis
set forth the following findings of fact:


                                                     -4-
The twins, now 15 months old are in the Mother[‘]s care. The
Mother, age 22, lives with her mother and stepfather. The
Father, 34, lives with his mother and father. The Mother has
a daughter, age 4, by a previous marriage, said child being in
the Maternal Grandmother’s legal custody. The Father has
legal custody of a daughter, age 4, from a previous
relationship. Both parents rely on the grandparents for
housing and childcare. Both parents have a history of illegal
drug use. The Father, in June 2003, resigned as a Deputy
Sheriff after accusations of involvement in drug dealing. The
Father has problems controlling his temper and conduct. The
Father has physically abused the Mother. The Father
demanded that the Mother abort the twins. The Father lied
about this to the Court. The Father gave no support, financial
or in kind for the twins until Court ordered in September
2003. The Maternal Grandparents have assisted their daughter
and the twins from birth. The Paternal Grandfather did not
know the names of the twins. The Paternal Grandmother did
not appear in Court. There was testimony that her physical
health problems limited her child care ability. The Mother
now lives at home with her mother and stepfather, the twins
and her previous daughter. The Father lives at home with his
mother and father and his previous daughter. Only on one
short occasion has the Father lived away from his parents with
his daughter. The parties lived together, were briefly married
for several months, during which time the Mother was the
care giver for Father’s first daughter. The Father now works
for his father earning $26,000.00 annual gross as a Security
Guard. The Mother has had numerous jobs, she now works
in a bar and grill and attends cosmetology school. The
Mother earns $8,400 annual gross. The Father made
visitation difficult for Mother during Father[‘]s brief period
of a Tennessee ex-parte, Court ordered custody of the one
month old twins who were born and resided in Georgia with
Mother and her father and stepmother. The Mother has had
the twins since birth other than the interruption caused by the
ex-parte order and the later recusal of the issuing Judge. The
Mother has given proper care and demonstrated proper
parental conduct with the twins. The parties appear to have
calmed down since the Court order of September 2003 giving
Mother primary residential placement and Father specific
residential time. Both now reside in the same town. The
Father exercises residential time and pays child support. The


                                 -5-
                Father admits the Mother[‘]s child care has been proper. The
                Father fears Mother may leave with the children. The
                Custody arrangement and relocation conditions will address
                this fear. The remaining conflict is the paternal grandparents
                who dislike the Mother and the maternal grandparents who
                dislike the Father all with reason. Normally this is not a
                factor, but in this case, both Father and Mother still reside
                with their respective parents. This factor is considered in the
                Court’s final decision and could, in the future, cause this
                Court to review its decision if such affects the children’s best
                interests.

         In support of his argument that the trial court erred in vesting Mother with primary residential
responsibility of the twins, Father asserts that Mother has shown a lack of initiative in providing
basic necessities for herself and her first daughter by relinquishing custody of that child to its
maternal grandparents and by failing to provide her support. Father also notes in this regard that
Mother has in the past failed to maintain “consistent substantial employment” and also has a history
of failing to maintain a stable and consistent residence, holding eleven different residences between
August 2001 and August 2003. The implication of these assertions is that Mother will not properly
care for the twins in a manner consistent with their best interests. We do not find that the evidence
supports this conclusion.

        As noted, the twins were born on April 15, 2003, and were in Mother’s care from that time
until they were transferred to the temporary custody of Father on August 15, 2003. Mother was
residing in Savannah, Georgia, with her father and stepmother, Stacey Clay, for the first three and
a half months after the twins were born, and Ms. Clay testified that Mother “did everything a good
mother does” during that period of time. Father’s father, Gary Keith, testified that on the day the
twins were transferred to the custody of Father, the children were in good physical condition, well
fed, and appeared to be properly cared for. The twins were returned to the custody of Mother in
September of 2003 and remained in Mother’s custody at the time of trial on June 24, 2004. During
this period of time the twins and Mother resided exclusively in the home of Mother’s biological
mother, Gail Allen, who testified as follows:

                Q. Tell the Court what has - - what have you personally
                observed [Mother] do regarding the care for these twins [sic]
                children, the children really at issue today, obviously, from
                September until today?

                A. She does everything.

                Q. Which is?




                                                  -6-
               A. Feed, change diapers, buy groceries, bathe, play. I mean,
               we all kind of play with them, but I do not assist in the
               necessary care of the twins; I do not assist in that. [Mother]
               does all of it.

               Q. Does she ask you to do that?

               A. No, she does not.

               Q. Based on your observation, does she need your care,
               assistance, or guidance?

               A. No. She’s got her hands full, no doubt about it. Of course,
               a mother would always like to think a child needs their
               guidance, but you know, she does a good job. The children
               are cared for, you know; and they’re happy, healthy, laughing
               little babies.

         Joyce Tizdale has owned and operated Tizdale Preschool, a licensed and accredited daycare
facility, for twenty seven years. She has known Mother for 15 years and kept the twins on Mother’s
behalf between July of 2003 and May of 2004. Ms. Tizdale testified as follows:

               Q. All right. And I believe you’ve already said [Mother] is
               responsible for delivering and picking up [the twins]. Her
               mother is not doing that?

               A. No.

               Q. And [Father] is not doing that?

               A. No.

               Q. All right. The appearance of the children every morning
               when they’re brought to your facility, how are they dressed
               and groomed?

               A. They were very well dressed, and she always had - -
               because I don’t furnish their food or their bottles, or their
               formula or anything - - she always had all that. The children
               were always dressed very well, were clean, and well groomed.

               Q. No problem with personal hygiene?



                                                 -7-
A. No.

Q. No problems with grooming?

A. No.

Q. No problem with inappropriate clothing?

A. No, none.

Q. And her choice of food and beverage for the children - -
was that appropriate?

A It was very well done, very well thought up, and very
nutritious.

Q. All right. And did that continue consistently with that
pattern from July of ‘03 until May of ‘04?

A. Yes.

Q. Was there ever a single incident, a single day that you can
tell the Court that you were concerned about either
appearance, hygiene, clothing, their diet, their food or
anything like that?

A. No. She always had it together.

Q. And based upon your observation of [Mother] during the
past year when she would deliver the children in the morning
or pick up children in the afternoon, how was her demeanor
in her relationship to her children?

A. Very loving. She’d kiss them a lot.

Q. Every morning?

A. Every morning, and sometimes they would cry after
because they would want their mommy. That was typical.

Q. In afternoons when she would come pick her up, how
would the children react to her?



                                 -8-
       A. Very happy.

       Q. And how would she react to them?

       A. She was happy. She would put her arms out and give
       them hugs, and they would crawl to her.

       Q. All right. Ms. Tizdale, can you tell this Court this evening
       of a single factor that you personally - - of which you are
       personally aware that reflects negatively upon [Mother’s]
       parental fitness, anything negative or bad about her ability to
       care for these children.

       A. I don’t know anything negative as far as taking care of the
       children.

Finally, Father himself testified as follows regarding Mother’s care of the twins:

       Q. From the date that these children obviously have been
       initially under [Mother’s] care and control from the date of
       birth until August 15 of ‘03, and then from September 15, on
       or about - - I’m sorry - - whatever the date was, from
       September ‘03 to today when the children have been again in
       [Mother’s] custody, are you aware of any neglect of these
       children by [Mother]?

       A. They’ve had some rashes that have been - - you know,
       everybody is going to have diaper rash.

       Q. Right.

       A. Outside of that rash being so severe, no, I don’t know of
       any mistreatment. I think everything has went well.
                                   ...

       Q. To the best of your knowledge, I mean, has [Mother]
       provided, you know, good - - I mean, not just basic care, but
       good and loving care for these children regarding feeding,
       clothing, bathing, dealing with them, curing their illnesses?

       A. Like I said, I’m not welcome to their house, but
       everything appears to be correct.



                                        -9-
        While the record does confirm a degree of instability in Mother’s behavior in the past, there
is substantial evidence showing that presently Mother has the ability and determination to properly
care for the twins, and she has succeeded in this regard at least from the time of their birth in April
of 2003 until trial of the case in June of 2004 - a duration of approximately thirteen months not
counting the period of time the children were in the custody of Father.

        Father’s contention that he is comparatively more fit to have primary residential care of the
twins is without merit. In particular, we are compelled to this conclusion by two findings of the trial
court.

       First, the trial court found that Father failed to provide the twins with financial support or in-
kind support until ordered to do so in September of 2003. In his brief, Father notes that he had
custody of the twins from August 15, 2003, until September 17, 2003, but otherwise admits that this
finding is correct and the evidence does not preponderate to the contrary.

        Second, the trial court found that Father physically abused Mother. The incident to which
this finding is related occurred when Mother returned to Father’s residence on November 21, 2002,
after the parties’ final separation on November 6, 2002. Mother testified as follows:

                I’d been gone for about two weeks. So I called [Father], and
                I said I’d like to come and get some my belongings because
                I hadn’t taken anything with me - - a couple changes of
                clothes. So I show up over there to get my stuff, and then I
                walked in and sat down in the living room. For the first few
                minutes, we were just talking, and I told him I was going to
                get some of my stuff. So I’d gone into the laundry room
                which was on the side of the house. And when I did, it made
                him mad for some reason, I guess because I was leaving. I
                was getting my belongings; and that’s something that I’d
                never done, was packed up all my belongings and left. And
                he grabbed a hold of me from behind. And the glass door was
                right in front of me. So to keep him from throwing me out
                the door and down the steps, I put my feet on either side of
                the door and pushed off. And when I did, he just threw me on
                the floor, and he hit me in the eye. And it busted some blood
                vessels, and my eye swelled up.

       Sheriff Chris Shockley of the Trousdale Sheriff’s Department was dispatched to Father’s
residence to investigate and testified that Mother exhibited injury consistent with her complaint that
Father had hit her in the eye. Mother, who as we have noted was pregnant at the time of this
incident, further testified that the day after she was assaulted by Father she went into pre-term labor.
On appeal, Father does not contest the trial court’s finding that he abused Mother and the evidence
does not preponderate otherwise.


                                                  -10-
         In sum, after careful review of the record, it is our determination that the evidence does not
preponderate against the findings of the trial court in this case. It is our further determination that
the trial court properly considered the relevant statutory factors under Tenn. Code Ann. § 36-6-101
relative to these findings and did not abuse its discretion in vesting Mother with primary residential
responsibility of the parties’ twin children.

                                                  B.

       The next issue we address is whether the trial court erred in setting the amount of child
support to be paid by Father.

        The trial court decreed that Father pay child support in the amount of $476 per month based
upon his current annual gross salary of $26,000. However, Mother notes that Father’s testimony
indicated that he earned an average annual gross income in the two years preceding trial of
approximately $37,000 during which time he was employed by the Wilson’s County Sheriff’s
Department. Mother asserts that this amounts to a gross monthly income of $3,091 and that under
the Tennessee Child Support Guidelines, income at this level warrants child support being set at
$790 per month for the parties’ two minor children. Mother observes that Father conceded that he
voluntarily resigned from his position with the Wilson County Sheriff’s Department and that he has
not sought equivalent employment to compensate for the resulting loss of income he has
experienced. It follows, Mother argues, that Father is intentionally underemployed, and child
support should be set at $790 per month based upon his prior income. We disagree.

        Father testified that in 1996, prior to his employment with the Wilson County Sheriff’s
Department, he obtained employment with Keith Professional Security Services, a business owned
by his father. When Father began employment with the Wilson County Sheriff’s Department in
March of 2002, he did not give up his job with Keith Professional Security Services, and he testified
that he continued to work for both employers and as a consequence worked a total of seventy-two
to eighty hours per week. It appears that the annual gross income of $37,000 realized by Father
during each of the two years preceding trial constituted the money he earned from two employers
by working extensive hours. Upon resigning from the Sheriff’s Department in June of 2003, Father
continued to work at Keith Professional Security Services and maintained his employment there at
the time of trial at an annual salary of $26,000 per year. Mother’s argument that Father is
underemployed is not based upon proof that he could obtain a more lucrative job, but rather upon
the fact that Father no longer realizes the salary he did when he had two jobs. We do not agree that
a person is voluntarily underemployed because he chooses to work less than seventy-two to eighty
hours per week. Accordingly, we find no merit in Mother’s argument the trial court erred in setting
the amount of Father’s child support obligation.




                                                 -11-
                                                     C.

       Next, Mother contends that the trial court erred in changing the twins’ surname from
“Surratt” to “Keith.”

       The record shows that Mother’s surname of “Surratt” is not her maiden name but rather the
name she retained after divorcing her ex-husband, William Andrew Surratt. Gary Keith testified as
follows regarding why the parties’ twin children should bear Father’s surname instead:

                If [Mother] gets remarried, she’s going to have a name
                different from her children; and she’s going to be in the same
                shape as [Father] is right now. Those kids are going to look
                at themselves and say - - you know, when they go to school,
                and they go to the different functions around, the sporting
                things, and say, “Well, how come my name is not the same
                [as] my mother’s, and it’s not the same as my father’s?” I
                think it’s going to have a very adverse reaction on those
                children.

        In its final order the trial court states that “[t]he children shall carry the surname of the natural
Father, Keith.” Although in its order the court does not offer grounds for its decision in this regard,
the court did state as follows at trial:

                And the name - - we have an agreement that the children are
                to be legitimated. We don’t have agreement on the names.
                Here’s where I am on that to give you some input. The
                custom as far as I know in the whole United States is the child
                has the name of its natural father, good or bad. And I have
                put thought into what Mr. Keith, Sr. was saying as far as the
                children having the name of somebody that’s not their father
                and mother. I mean, so you all see where I’m coming from.

       In Barabas v. Rogers, 868 S.W.2d 283, 287 (Tenn. Ct. App. 1993), we restated the law
governing the change of a child’s surname as follows:

                The courts should not change a child’s surname unless the
                change promotes the child’s best interests. Among the
                criteria for determining whether a child’s surname will be in
                the child’s best interests are: (1) the child’s preference, (2) the
                change’s potential effect on the child’s relationship with each
                parent, (3) the length of time the child has had its present
                surname, (4) the degree of community respect associated with
                the present and proposed surname, and (5) the difficulty,


                                                    -12-
                harassment, or embarrassment that the child may experience
                from bearing either its present or its proposed surname. The
                parent seeking to change the child’s surname has the burden
                of proving that the change will further the child’s best
                interests.

(Citations omitted).

         Mother asserts that “[n]either father nor his witnesses, including his own biological father,
testified as to any fact relevant to the five criteria to be considered, regarding a child’s name change.”
However, the primary question that the court must answer before changing the surname of a child
is whether the change is in the child’s best interests. While the five criteria we referenced in
Barabas may offer a court guidance in answering that question, those five criteria are not exclusive
and obviously may not be relevant given the facts of a particular case. In this case, we find as did
the trial court that the testimony of Gary Keith constitutes sufficient proof that it is in the best
interests of the parties’ children that their surname be changed to “Keith.” The trial court properly
relied upon this testimony in reaching its decision in that regard.



                                                   D.

        The final issue we address is whether the trial court abused its discretion in failing to require
that Father pay Mother’s attorney’s fees in this matter.

      A trial court’s power to award attorney’s fees in a custody proceeding is codified at Tenn.
Code Ann. § 36-5-103(c) as follows:

                The plaintiff spouse may recover from the defendant spouse,
                and the spouse or other person to whom the custody of the
                child, or children, is awarded may recover from the other
                spouse reasonable attorney fees incurred in enforcing any
                decree for alimony and/or child support, or in regard to any
                suit or action concerning the adjudication of the custody or
                the change of custody of any child, or children, of the parties,
                both upon the original divorce hearing, and at any subsequent
                hearing, which fees may be fixed and allowed by the court,
                before whom such action or proceeding is pending, in the
                discretion of the court.

       Mother’s argument that Father should be required to pay her attorney’s fees is based upon
her assertion that she was awarded residential custody of the parties’ children and that Father’s
income amounts to an average of the $35,000 to $40,000 he earned in 2002 and the $36,693 he


                                                  -13-
earned in 2003. As we have noted above, Father resigned from his job with the Wilson County
Sheriff’s Department in June of 2003, and his annual income at the time of trial had diminished to
$26,000 because he was no longer working for two employers. Mother’s argument that Father
should be required to pay her attorney’s fees based upon an annual salary which substantially
exceeds that which he actually receives is without merit. Based upon our review of the record, we
do not agree that the trial court abused its discretion in failing to award Mother attorney’s fees in this
case.

                                                   V.

        For the foregoing reasons, we affirm the judgment of the trial court and remand for further
action consistent with this opinion. Costs on appeal are adjudged against James Ross Keith and
Jordan Ashley Surratt equally.



                                                _________________________________________
                                                SHARON G. LEE, JUDGE




                                                  -14-
