                                                                                        12/19/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                       Assigned on Briefs November 15, 2017

                                IN RE: AUTUMN B.

            Direct Appeal from the Juvenile Court for Hamilton County
                     No. 269-765    Robert D. Philyaw, Judge


                            No. E2017-00019-COA-R3-CV


This is a child custody case. Mother appeals the trial court’s determination that Father
should be designated as the child’s primary residential parent. Father requests attorney’s
fees for defending this appeal. Discerning no error, we affirm the decision of the trial
court. This Court deems the appeal frivolous and remands this matter to the juvenile
court to determine attorney’s fees and costs to be awarded to Father.

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

BRANDON O. GIBSON, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., and JOHN W. MCCLARTY, J.J., joined.

Alan R. Beard, Chattanooga, Tennessee, for the appellant, Cintia L. C.

Mary Sullivan Moore, Chattanooga, Tennessee, for the appellee, Jacob K. B.

                                       OPINION

                          I. FACTS & PROCEDURAL HISTORY

       Appellant Cintia L. C. (“Mother”) and Appellee Jacob K. B. (“Father”) have one
child together (the “Child”), who was born on September 17, 2015. The parties were
never married but cohabitated between February and December 2015. Mother has
another son from a marriage that pre-existed the parties’ relationship. Father has a
daughter and a son from an earlier relationship.

      Shortly after the birth of the Child, Mother and Father’s romantic relationship
began to unravel, and they ultimately separated in late December 2015. On January 4,
2016, Mother secured an ex parte temporary restraining order against Father that was
subsequently dismissed by the court. In the following weeks, Mother withheld the Child
from Father and refused to allow visitation. In light of this, Father filed a petition for
custody of the Child on January 13, 2016, in the Juvenile Court for Hamilton County,
Tennessee. Father simultaneously filed a motion to prevent Mother from leaving the
jurisdiction of the court with the Child in light of statements Mother made about moving
to Texas with the Child. The parties entered into a mediated agreement on January 18,
2016, which provided that Father could begin seeing the Child for one or two hours at a
time during supervised visits pending the outcome of his petition for custody. According
to Father, he agreed to supervised visitation at the time because supervised visitation was
better than not being allowed to see his Child at all.

       Father’s petition was initially heard by a Magistrate for the juvenile court. On
April 12, 2016, the Magistrate rendered his findings and recommendations, which
essentially granted Father’s petition, designated him as primary residential parent, and
adopted Father’s proposed parenting plan. The juvenile court subsequently entered an
order adopting the recommendations of the Magistrate with only minor changes.
According to this parenting plan, parenting time of the Child was shared equally between
Mother and Father, and Father was designated as the Child’s primary residential parent.

        Mother thereafter requested that the juvenile court conduct rehearing of the proof
presented to the Magistrate on Father’s petition for custody of the Child. The juvenile
court granted Mother’s request and held a thorough de novo rehearing of the Magistrate’s
findings and recommendations, which took place over the course of three days – August
11, September 1, and October 20, 2016. The court heard the testimony of Mother,
Father, and more than ten other witnesses, and several exhibits were entered into
evidence for the court’s review. At the conclusion of the proof, the court took the matter
under advisement. The court then entered its findings of fact and conclusions of law on
December 8, 2016. The juvenile court’s order is a detailed eleven-page analysis of the
issues raised by the parties in this case in which the court made a “determination of the
child’s best interest by applying the factors in TCA § 36-6-106, in order to determine
custody and a parenting schedule.” Further, the juvenile court stated its goal of crafting
“a custody arrangement that permits both parents to enjoy the maximum participation
possible in the life of the child.” The court then went through each best interest factor,
setting forth its findings on each factor and the reasons therefor. The court essentially
found that all applicable factors weighed evenly for both parties with the exception of
Tennessee Code Annotated section 36-6-106(a)(2) and (9), which favored Father. The
court went on to hold as follows:

       This matter is between two parties who have separated and appear to be
       adjusting to the shift in their relationship. Furthermore, according to
       testimony during trial, the only current discrepancy that the parties have is
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        related to changes in schedules which may require future accommodation.
        Otherwise, it is the finding of the court that the parties have the disposition
        to co-parent equally in the best interest of their daughter.

        As such, the court finds the following regarding the parenting plan in this
        matter:

        The father shall be designated as primary residential parent.

        Each parent will spend roughly 182.5 days with the child . . . .


Mother now appeals the trial court’s decision designating Father as the Child’s primary
residential parent and giving the parties equal parenting time with the Child.

                                           II. ISSUES PRESENTED

      Mother presents the following issue for review on appeal, which we have restated
and consolidated:

        Whether the trial court erred in designating Father as the primary residential
        parent of the Child?

        Father presents an additional issue, which we have restated:

        Whether Mother’s appeal is frivolous such that Father should be awarded
        his attorney’s fees incurred on appeal pursuant to Tennessee Code
        Annotated section 27-1-122 ?1


                                    III. STANDARD OF REVIEW

       In nonjury cases, this Court’s review is de novo upon the record of the proceedings
in the trial court, with a presumption of correctness as to the trial court’s factual
determinations, unless the evidence preponderates against those findings. Tenn. R. App.
P. 13(d); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993). The trial
court’s conclusions of law, however, are afforded no such presumption. Campbell v.
Florida Steel, 919 S.W.2d 26, 35 (Tenn.1996).

1
 Father also requested that we deny Mother’s initial request for oral argument before this Court. This
issue was disposed of, however, by agreement of the parties, and the case was not heard at oral argument.
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                                    IV.    DISCUSSION

A.   Primary Residential Parent

     As we did in Sansom v. Sansom, we begin with the following observations of
Mother’s arguments and brief submitted on appeal:

       At the outset of our analysis, we note that, particularly regarding the issue
       of what is in the Child’s best interest, [Mother] appears to be asking this
       Court to reevaluate each fact heard by the trial court and simply reach a
       different conclusion than that of the trial judge. The vast majority of
       [Mother’s] arguments do not take into account the deferential standard of
       review by which we assess a trial court’s decisions regarding child custody.
       See Koch v. Koch, 874 S.W.2d 571, 575 (Tenn. Ct. App. 1993) (“Trial
       courts are vested with wide discretion in matters of child custody and the
       appellate courts will not interfere except upon a showing of erroneous
       exercise of that discretion.”). Appellate courts are not inclined to relitigate
       factual issues on appeal that were reasonably resolved by the trier of fact,
       which, in this case, was the trial judge. See Tenn. R. App. P. 13(d). To that
       end, we find [Mother’s] arguments to this Court that he simply does not
       agree with the conclusion reached by the trial court to be unavailing.

Sansom v. Sansom, No. M2016-01111-COA-R3-CV, 2017 WL 1948690 at *4 (Tenn. Ct.
App. May 10, 2017) (no perm app. filed).

         Notwithstanding, we turn to Mother’s contention that the trial court erred in
weighing the factors of Tennessee Code Annotated section 36-6-106 to determine the
best interest of the Child. Tennessee Code Annotated section 36-6-106 states that when a
court is determining what is in a child’s best interest, a court shall consider all relevant
factors, including fifteen (15) that are expressly written into the statute for a court’s
consideration. See Tenn. Code Ann. § 36-6-106 (a)(1) through (15). In the case at bar,
the trial court took great care to articulate and analyze each one of these factors. Mother
appeals only the trial court’s determinations with respect to factors (2), (5), and (9).

       (2) 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. In determining the willingness of each of the parents and
       caregivers to facilitate and encourage a close and continuing parent-
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      child relationship between the child and both of the child’s parents, the
      court shall consider the likelihood of each parent and caregiver to
      honor and facilitate court ordered parenting arrangements and rights,
      and the court shall further consider any history of either parent or any
      caregiver denying parenting time to either parent in violation of a
      court order.

      With respect to this factor, the juvenile court found as follows:

      This factor weighs more heavily in favor of the father. Although the
      mother had significant parenting responsibilities, the Court cannot dismiss
      her actions that led to the unfortunate denial of parenting time for the father
      early in this litigation in such an acrimonious way. The Court also finds
      that the mother acted inappropriately in several instances involving
      exchanges and her unannounced visits to father’s home. However, it is the
      Court’s belief that these parents can adequately co-parent. Additionally,
      the parties live and work in close proximity to each other and testimony by
      [Father] reflected that they are able to adjust their work schedule based on
      their family needs.

        Mother takes issue with the juvenile court’s characterization of her actions
following her separation from Father as denying Father parenting time “in such an
acrimonious way.” Mother points out that Father did not file a petition for custody of the
Child until January 13, 2016, and that the parties attended mediation five days later and
temporarily resolved their parenting issues pending further orders of the court. According
to Mother, the “expedient fashion” in which she and Father resolved their differences at
mediation is proof that she had no intent to deprive Father of parenting time. To the
contrary, we find ample evidence in the record to support the court’s conclusion that
Mother initially withheld the Child from Father in an acrimonious manner. Prior to the
parties’ romantic split, the couple lived together with the Child and shared parenting
responsibilities of the Child. After their break-up, Mother completely withheld the Child
from Father for approximately four weeks, took out an ex parte restraining order against
Father (that was subsequently dismissed) without proof of any history of violence, and
then only allowed Father to see the Child in supervised visits for one or two hours at a
time after the parties’ mediation. All of this coincided with Mother and/or her attorney
speaking negatively about Father to the news media and launching at least two internal
affairs investigations against Father at his workplace. We agree with the juvenile court’s
characterization of Mother’s behavior in the months following her separation from Father
as being “acrimonious” in nature.



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       Mother also disputes the juvenile court’s finding that she acted “inappropriately in
several instances involving exchanges and her unannounced visits to father’s home.”
Father and his current girlfriend testified that Mother’s visits during Father’s parenting
time were uninvited and took place both early in the morning and late at night. Mother
contests the juvenile court’s finding on this issue because she was dropping in on Father’s
parenting time in order to provide the Child with breast milk. Therefore, Mother argues,
the court’s “categorization of Mother’s visits as ‘unannounced’ is not entirely accurate.”
(Emphasis added.) Nevertheless, Mother’s rationale for appearing at Father’s house
uninvited makes her visits no less “unannounced.” She could have easily called and
arranged with Father or her own attorney a time to drop off breast milk. Also, whether or
not Mother feels that the juvenile court’s characterization of her actions is “entirely
accurate” is not the standard by which we review best interest determinations on appeal.
We discern no abuse of discretion in the court’s weighing this factor in favor of Father.

      (5) The degree to which a parent has been the primary caregiver,
      defined as the parent who has taken the greater responsibility for
      performing parental responsibilities.

      The trial court held:

      This factor preponderates in favor of both parties in that they have
      generally shared equal amounts of time with the child with the exception of
      the brief period during which a temporary restraining order was in place
      during which time [Father] had some supervised [and] some unsupervised
      visitation. The Court notes that they have shared relatively equal amounts
      of time with the child despite her tender age and the fact that [Mother] was
      breastfeeding. This demonstrates a willingness to cooperate and an implicit
      trust between the parties.

        Mother disputes the juvenile court’s finding that this factor weighed equally in
favor of both parties and asserts that the court should have determined this factor weighed
in her favor. The gist of Mother’s argument on this point is that she takes better care of
the Child’s medical needs than Father. In her appellate brief, Mother details specific
instances in which she felt Father should have been more proactive when the Child was
ill or allegedly injured. Mother concludes from these incidents that the “evidence in the
record unequivocally establishes a pattern of behavior whereby Father does not tend to
the child’s medical needs appropriately.” However, the trial court heard a substantial
amount of testimony regarding Mother’s allegations of the Child’s injuries/illnesses and
obviously determined that Father’s course of action was not inappropriate. We also note
that Mother’s ex-husband, who is the father of her older child, testified regarding his own
son that Mother “probably takes him to the doctor when he – when I may not take him or
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I may think he does not need to go.” A trial court is in the best position to make these
types of judgment calls, and we will not disturb them on appeal absent a clear abuse of
discretion. Mother makes no compelling argument that the trial court abused its
discretion in weighing this factor.

       (9) The child’s interaction and interrelationships with siblings, other
       relatives and step-relatives, and mentors, as well as the child’s
       involvement with the child’s physical surroundings, school, or other
       significant activities.

       The court held:

       This factor preponderates in favor of [Father], as according to testimonial
       evidence presented during trial, he has 50/50 parenting time with his
       children from a previous relationship and no significant incidents were
       reported as to their interaction with the child. [Mother], however, is in the
       process of obtaining help with her older son’s interaction with [the Child]
       after an apparently isolated incident when she was two months old.

        Mother argues that the trial court erred in finding that this factor weighed in favor
of Father rather than in her favor on two factual bases. First, Mother recounts her own
testimony regarding an incident between her older son and the Child, the facts of which
are unnecessary to recount here, and asks this Court to essentially hold that, because this
was an isolated accident, the juvenile court erred in considering this event at all. We
remind Mother that the trial court did in fact note that this was an “isolated” incident
between her children. Furthermore, whether it was an accident or not, the fact remains
that Mother’s older son inflicted an injury on the Child that resulted in the Child being
taken to the emergency room. The juvenile court properly considered this incident under
a statutory factor that requires a court to examine the Child’s “interactions and
interrelationships with siblings.” See Tenn. Code Ann. § 36-6-106(a)(9).

       Second, Mother avers that the court erred in weighing this factor because “the trial
court failed to mention that the Mother has full custody of her son, which should, at the
very least be given as much weight and significance as Father’s current relationship with
his other children. Accordingly, the Court should have found that this factor weighed in
favor of Mother.” However, Mother has provided no citation to the record to support her
assertion that she has “full custody” of her other son, and we have found nothing in the
record that supports this either. To the contrary, Mother’s ex-husband, who is the father
of her older son, testified that he and Mother co-parent their son. Father’s testimony
corroborated this. Regardless, the court’s silence on Mother’s parenting arrangement
with her ex-husband is not an abuse of discretion that would require this factor to be
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weighed in favor of Mother. Our review of the record supports the trial court’s
determination that this factor weighs in Father’s favor, and Mother makes virtually no
argument, and certainly no persuasive one, to support her position that this factor weighs
in her favor.

      Given the above, the juvenile court did not err in splitting parenting time evenly
between the two parents and designating Father as primary residential parent.

B. Attorney’s Fees on Appeal

       Father asserts that Mother’s appeal is frivolous and has requested that this Court
award him damages, including the attorney’s fees he has incurred on appeal. The
determination of whether to award attorney’s fees on appeal is within the sole discretion
of the appellate court. We respectfully decline to do.

                                   IV. CONCLUSION

        For the foregoing reasons, we affirm the judgment of the juvenile court in all
respects. Because we deem this appeal frivolous, we remand this case to the juvenile
court for a determination of the amount of attorney’s fees and costs to be awarded to
Father. Costs of this appeal are taxed to Mother, and her surety, for which execution may
issue if necessary.



                                                _________________________________
                                                BRANDON O. GIBSON, JUDGE




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