                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               November 13, 2012 Session

          ROBERT W. PORTER v. BRANDI PORTER (KIMBRELL)

              Direct Appeal from the Circuit Court for Franklin County
                      No. 13435-CV      J. Curtis Smith, Judge


                No. M2012-00148-COA-R3-CV - Filed January 25, 2013


                                  CONCURRENCE
                         _________________________________

HOLLY M. KIRBY, J., CONCURRING:

While I agree with the majority opinion in this case, I write separately to say that I view the
question of whether to affirm the trial court’s decision to be a much closer question than is
indicated by the majority opinion. I concur only because of the high standard of appellate
review of the trial court’s decision.

I am troubled by Mother’s frequent moves - with the parties’ children - from one boyfriend’s
house to her mother’s house to another boyfriend’s house. She may, for now, be married and
settled with her current husband. However, whatever Mother’s moral failings, this series of
decisions demonstrates a willingness to uproot the children repeatedly and expose them,
intimately, to the tumultuous navigation of her romantic relationships. This demonstrates
both poor judgment and an unwillingness to place her children’s interests above her own.

I am also troubled by Mother’s pattern of prevarication, particularly in matters that reflect
on her instability, poor parenting judgment, and willingness to expose the parties’ children
to adult matters and conflicts. On appeal, we are required to defer to the trial court’s
assessment of the witnesses’s credibility in the absence of clear evidence to the contrary, and
so I defer to the trial court’s assessment of Mother’s overall credibility. However, Mother’s
pattern of dissembling must be considered in the ultimate decision on whether it serves the
children’s best interest to remain in her custody.

Particularly disturbing is Mother’s indefensible, gratuitous remark to the parties’ then eight-
year-old son in the WalMart store. Apparently out of the blue, and for no reason except to
use her own son to spite Father, Mother tells the poor bewildered child that a DNA test was
performed to determine if Father was the son’s biological father, implies that Father wanted
to be rid of the child, and points to a stranger who supposedly would have been willing to
take over Father’s responsibilities to the son.

Not surprisingly, the son apparently brought the matter up to Father, and he had to respond.
Was his response imperfect? No doubt. But Mother had placed Father in an untenable
position, and I for one cannot conceive of a perfect response in those circumstances. To say
that Father should not have discussed the parties’ divorce with the children is simplistic and
not grounded in reality. Mother had told the son about the DNA test to determine his
parentage - a reasonable request, by the way, in the wake of the parties’ divorce - in a
manner that was calculated to lead the son to wonder if Father wanted him and was trying
to get out of being the son’s parent. Father of course could not just deny that the DNA test
took place, because it did. This left him in the position of trying to address very adult matters
in a way that was truthful and age-appropriate and would answer the son’s articulated
questions as well as his unspoken fears, planted by Mother, that Father did not want him.
This is no easy task.

Rather than simply saying that both parties share the blame in this matter, I place the lion’s
share of blame squarely with Mother. As noted above, Mother’s frequent moves with the
children into one boyfriend’s home after another indicates a tendency to place her own needs
above those of her children. The WalMart episode speaks directly to Mother’s character and
her fitness as a parent; it demonstrates an alarming willingness to inflict psychological harm
on her own child for no purpose other than to hurt her ex-husband and undermine his
relationship with his children.

On appeal, we are not allowed to substitute our judgment for that of the trial court, and are
permitted to reverse the trial court’s decision on the designation of primary residential parent
only if it rises to the level of an abuse of the trial court’s discretion. In light of that very high
standard of review, I concur in the majority’s affirmance of the trial court’ decision to leave
Mother as the children’s primary residential parent. But, to me, it is a close question indeed.




                                                       _________________________________
                                                       HOLLY M. KIRBY, J.




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