                                                                                       04/25/2018
                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                              Assigned on Briefs February 2, 2018

              WAFA BADAWI HINDIYEH v. WALEED FAWZI ABED

                   Appeal from the Chancery Court for Rutherford County
                          No. 16CV-802    J. Mark Rogers, Judge1


                                  No. M2017-00410-COA-R3-CV


This appeal arises from a divorce. Wafa Badawi Hindiyeh (“Wife”) sued Waleed Fawzi
Abed (“Husband”) for divorce in the Chancery Court for Rutherford County (“the Trial
Court”). After a trial, the Trial Court, inter alia, granted Wife a divorce, entered a
permanent parenting plan with respect to the parties’ minor son (“the Child”) awarding
Wife 285 days to Husband’s 80, and awarded Wife a judgment for the value of a Cadillac
less $2,500 Wife received on the sale of her original vehicle for a total judgment of
$13,400. Husband appeals to this Court, arguing, among other things, that the Trial
Court found no statutory factors applicable to justify such a paltry award of parenting
time to him and that the Cadillac at issue was not even marital property subject to
division. We vacate the Trial Court’s judgment with respect to the residential parenting
schedule and remand for the Trial Court to award Husband significantly more time with
the Child. Finding that the Cadillac was not marital property, we modify the Trial
Court’s award of $13,400 to Wife to $2,000 to account for only the sale of Wife’s
original vehicle. We otherwise affirm the Trial Court. We, therefore, affirm as modified,
in part, and vacate, in part, the judgment of the Trial Court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
          Affirmed as Modified, in Part, and Vacated, in Part; Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which W. NEAL
MCBRAYER and ARNOLD B. GOLDIN, JJ., joined.

Charles G. Ward, Murfreesboro, Tennessee, for the appellant, Waleed Fawzi Abed.

Sonya W. Henderson, Murfreesboro, Tennessee, for the appellee, Wafa Badawi
Hindiyeh.


1
    Assigned this case following the recusal of Chancellor Howard W. Wilson.
                                     OPINION

                                    Background

       Husband and Wife were married in October 2013. Husband was age 26 at trial
and is originally from Kuwait. Wife, age 23 at trial, hails from Jordan. The Child was
born in December of 2015. The parties lived in Smyrna, Tennessee during the marriage.

       Husband works for Nissan in the Quality Control Department. Wife did not work
during the marriage but was a full-time student at Middle Tennessee State University.
Wife went on to earn her Master’s Degree in Accounting. Wife now works as an
accountant for HCA in Nashville. The parties purchased a house in Smyrna. Husband’s
father and uncle own a body shop and contributed significant sums to Husband for the
couple to live on during the marriage, including $47,000 for a down payment on their
home. These contributions are a point of contention on appeal.

      Wife entered the marriage owning a 2004 Mercedes. Husband later sold the
Mercedes for $4,500, giving Wife $2,500 to use toward her tuition. When Wife
graduated from MTSU, Husband presented Wife with a Cadillac featuring a large bow on
top. However, the car was not titled in Husband’s name but rather originated with
Husband’s father’s business. When the parties separated, Husband’s father repossessed
the Cadillac. The Cadillac later was put up for sale at the price of $15,900.

        In April 2016, the parties separated. Wife filed for divorce in May 2016. Wife
and the Child went to live with Wife’s mother. Wife pays her mother $400 a month to
watch the Child. After a Pendent Lite hearing in July 2016, Husband was awarded
visitation every other weekend from Saturday at 11:00 a.m. until 4:00 p.m. and Sunday
from 11:00 a.m. until 5:00 p.m.

        This case was tried in December of 2016. Wife’s mother, Tahani Quwaider,
testified concerning Husband’s behavior toward Wife:

      Q. All right. How long have you known Waleed Abed?
      A. (Through interpreter) Since -- since they engage, almost three years.
      Q. All right. Do you know of an occasion while they were married that you
      had to get your daughter in her pajamas because she had been thrown out of
      the house of Waleed Abed and her?
      A. (Through interpreter) Yes. He kicked her out of house and he took --
      took the wallet, the key -- her keys and left her without anything.
      Q. And what?
      A. (The interpreter) Left her without anything, without any documents.
                                         -2-
                                     ***

Q. Was she punished many times for associating with Americans?
A. (Through interpreter) All the time, punished. All the time.
Q. What punishments did she know of?
A. (Through interpreter) Beating her up, threatening her, threw her away
from home, and threatening by divorce.
Q. All over just hanging around Americans?
A. (Through interpreter) Yes. And preventing her from go out or if she
liked to go to park with her son, is not allowed. Everything is forbidden or
not allowed.

Wife’s mother testified further, this time regarding her babysitting the Child:

Q. So she gave some -- I have some documents. So your daughter writes
you a check to babysit her grandson -- her son?
A. (Through interpreter) Yes. Checks, yes.
Q. So she charges her own daughter to watch her grandson?
A. (Through interpreter) She try to help her.
Q. So she doesn’t give her -- pay her to watch her grandson?
A. (Through interpreter) Yes, to take care of the child and be aware of the
child.
Q. And her -- does her daughter live in her house with her?
A. (Through interpreter) Yes, in the same house.
Q. Does she -- if her -- if her daughter doesn’t pay her, is she going to
throw her grandson out?
A. (Through interpreter) No, she’s going to put him in his eyes and in her
heart.
Q. So if she puts her in -- she puts her grandson in her eyes and her heart,
why does she charge her daughter $500 to watch her own grandson?
A. (Through interpreter) She saying it’s better than babysit, you are going
to take care of the child instead of to pay the babysit. You are -- you will
be better than anybody else. You are going to be taking care of the child.
Q. So if the father watches the child and he doesn’t charge anything, it
saves her daughter money, does it not?
A. (Through interpreter) She cannot trust in him because he tried to
promise many things and she doesn’t believe that.
Q. How much does she charge a week to watch her own grandson?
A. (Through interpreter) Totally, per month, $400 a month.
Q. Does she charge her own daughter to stay in her house?
                                     -3-
A. (Through interpreter) Yes, she pay $500.
Q. Does she charge her own daughter for electric, water, gas, cable?
A. (Through interpreter) Yes. She helps. Last month she helped, this
month she helped. She help always.

                                    ***

Q. Even if she doesn’t get paid any money, is she going to continue to
watch her grandson?
A. (Through interpreter) Yes.
Q. Ask her if she’ll do it for free. Would she do that for free, watch her
grandson?
A. (Through interpreter) She would put him in his eyes, but he has to
manage that and to give this is -- he has to pay that too.
Q. Who is he?
A. (The interpreter) The son-in-law.
Q. My question is, will she watch her grandson for free? Is that yes or no,
and then she can explain.
A. (Through interpreter) Yes.

Wife testified as follows concerning the parties’ finances during the marriage:

Q. And when you two purchased this home, you put $45,000 down; is that
correct?
A. Yes, ma’am.
Q. The $45,000 came from where?
A. I put $2,000 and he put the rest. He would -- his work from Nissan, and
then he would sell -- buy and sell cars with his father. That’s how he
collected all that money.
Q. So that money actually came out of his checking account?
A. Uh-huh.

                                    ***

Q. All right. Now, you -- 2014, 2015, 2016 -- first off, I will show this to
your husband. All of his checking accounts show -- statements where these
-- there’s money from cars being, whatever you call it, sold.
A. Uh-huh.
Q. Flipped, so to speak.
A. Uh-huh.


                                     -4-
Q. And you guys have used that money for the whole time you were
married?
A. Uh-huh. That’s correct.
Q. That was normal?
A. Uh-huh.
Q. So this Cadillac -- well, let me back up. When you married him, did you
own a car?
A. I did. Yeah, I had my own car.
Q. And what was it?
A. I had a 2004 Mercedes.
Q. And what did you do with the 2004 Mercedes?
A. He sold it later.
Q. Your husband sold it?
A. Well, he listed for sale without asking me, and then at the last minute,
just before he went to show it to customers, he called me, he was like, I’m
going to sell it. You can say yes or no. But there’s people who want to buy
it and they’re serious. And he’s like, I’m going to get you a different car,
but yes or no. But -- well, they’re already here. Yeah. But he didn’t tell
about listing it. I wasn’t ready. I didn’t have any other car at the moment.
But, you know, he just put me under the pressure and I just said yes.
Q. And what did ’04 Mercedes sell for?
A. 4500.
Q. And $4500, did he bring that to back to the house?
A. He did, yeah. He gave me that.
Q. And what happened to that money?
A. Then a few days later, his dad called him asking him for $2,000. I’m not
sure why he didn’t tell me. He was about to go to the bank and withdraw
$2,000 to give to his dad, but he was like, instead of me going to the bank,
can you give me the money now since you have cash at home and I’ll bring
it back to you whenever, like, you want to pull that money out. I was like,
yeah, sure, you can do that. And he never paid me back.
Q. And the rest of the money was tuition?
A. Yeah, I put it on tuition.
Q. Okay. So when did the Cadillac show up as your new car?
A. I didn’t receive it until after I graduated and had my son. It was
supposed to be, like, a graduation gift.
Q. Did it have a bow on it?
A. It did, yeah.
Q. Did you know the car was titled in someone else’s name?
A. I did know, yeah. It didn’t actually have a title on it.

                                    -5-
     On cross-examination, Wife testified as follows regarding her objection to
Husband having more time with the Child:

      Q. So basically, you want the father not to have a -- not to see his son
      hardly at all for a whole year and let your son stay with your mother all day
      and have a good relationship with her?
      A. I asked him, whenever I was applying to a job, whenever I had that
      internship, I told him since he goes to work at one and I go to work at,
      what, six in the morning -- when I lived in Smyrna, I would have to leave at
      6:40 or 6:30, I told him, you can watch him from the time I leave until 12
      p.m. and then take him to the daycare or take him to my mom’s house or
      your mom’s house, whoever’s watching him. He was like, no, that’s my
      job, that’s your job. I don’t -- I’m not going to change a diaper. I’m not
      going to feed the baby. That’s your job. You’re a woman and you’re going
      to do that. If he really wants to see him, from -- and watch him in the
      morning, he would done that. He would have asked me, I can watch
      Fawzie whenever you’re at work. He never asked me, never. So he’s just
      saying that he’s going to watch him without even asking.
      Q. So if he get up there in this court and says, I want my son every other
      week. I want a solid week with my son, just like the mother has, is he
      entitled to that if he wants it? And he’s going to raise his son.
      A. But he was very emotionally abusive to me. He’s like --
      Q. I’m not asking about that. I’m asking, do you think he should be able to
      get a week with his son if he wants to spend that time with him? That’s my
      question.
      A. It’s -- his job is very -- like, it’s night shift. It’s second shift. In the
      morning, okay, there’s babysitters and -- but at night, who -- like, who’s
      going to watch him. He’s going to work from 2 p.m. to 10 p.m. --
      Q. Well, what if it’s -- so if he gets up there and says, my mother is going
      to watch my child --
      A. His mother refused previously to watch him. That’s why I asked my
      mom to watch him, and he refused my mom.

       Husband testified on a number of topics, including the disputed point of his
father’s business vis-à-vis his income, as follows:

      Q. Do you love your son?
      A. Yes, absolutely.
      Q. Why do you want 50-50 with your son? Why do you want that time?
      A. I understand we’re getting divorced and I’m okay with that, but I still
      love my son. I still love him and he’s my top priority. I’ll do anything for
                                            -6-
him. He’s -- he’s very important to me. I’ll make sure he’s safe and
provide everything he needs while he’s with me.

                                    ***

Q. Mr. Abed, as you sit right now, are you attempting to get on days [at
work]?
A. Yes, sir.
Q. Okay. And what shift would day shift be?
A. Six to 2:30 every day.
Q. All right. And what is preventing you from going to days as we speak
now?
A. There’s me and another individual on second shift, currently, and he’s
going to be off for about three -- about three months for a knee
replacement. That’s the only thing holding me back. When he gets back
from his surgery, then I automatically go to day shift.
Q. That’s -- before you go to day shift, if your son is with you and gets up
at 6 a.m., who is with him?
A. Me.
Q. Okay. Until you go to work at 1:30, who is your son with?
A. With me.

                                    ***

Q. Did your dad give you money from time to time?
A. Several times, yes.
Q. Throughout your marriage, did your dad give you cash?
A. Yes.
Q. And what did you all use that for, you and your wife?
A. Bills.

                                    ***

Q. All right. When you and your wife were together, would you sometimes
sell cars for your dad?
A. Yes.
Q. What kind of lot does he own?
A. Most of the cars are rebuilt titles. We have a -- he has a body shop and a
mechanic shop and they do all the repairs there. They buy salvage cars and
rebuild them, basically.
Q. So are salvage cars like junk cars?
A. No.
                                     -7-
Q. Or is it cars that have been totaled?
A. Cars that have been wrecked and the insurance companies will list them
online for businesses to purchase and rebuild.
Q. Okay. And from time to time, does he give you money from those cars
when you and your wife were together?
A. Yes.
Q. Has he done it at all in 2016, at all? Have you done any car business at
all?
A. Zero.
Q. Did you, at one time, do an Uber for a little while?
A. I did it twice, two days, and then I stopped.
Q. You heard her when she said there was a $200 payment to you -- $250
payment from Uber in September of 2016. What is that?
A. My brother-in-law signed up to drive for Uber and I referred him. So
Uber paid me $200 -- I think it was 200 or 250 bonus because I referred
him. I got that money.

On cross-examination, Husband testified as follows:

Q. So have you hit [Wife] in the leg and pinched her very hard?
A. I didn’t pinch her very hard. We both exchanged pinches on one
occasion. She pinched me and I lightly pinched her back. There was no
hitting.

                                   ***

Q. Now, you have testified that the 2014 deposits, which I’ve added up to
be around $31,520, or an average of an extra twenty-six twenty six a
month, were for your home purchase. Is that your testimony?
A. Yes.
Q. All right. Then you purchased this home, but you’re still getting
deposits for 2015 that total about $19,020, or an extra $1585 month. These
deposits are from sales of cars, are they not?
A. They were given -- funds given to me by my father and uncle when they
sold a vehicle.
Q. Your father doesn’t own anything. From your uncle?
A. Yes.
Q. You already bought the house. They sell a vehicle, they give you
$19,000. Why?
A. I didn’t make enough to pay the bills and all the upkeep and her credit
card payment that I pay every month. I didn’t make enough to get by.
                                    -8-
      Q. You two have little debt. She had that one credit card, you don’t have
      any, right? No car payments. No payments whatsoever, except a house
      payment. And how much was that?
      A. It’s 1274 now.
      Q. All right. 1274 a month, the house payment. Let’s add another 800 --
      maybe $2,000 a month you need for that. Maybe groceries. $3,000 dollars
      a month. You are making more than that working at Nissan. Would you
      disagree with me? Where’s the money going?
      A. My net is 660 a week. I broke even most months.
      Q. So you wouldn’t give me anything here for 2016. So how much money
      have they been giving for this year?
      A. There’s nothing for this year.
      Q. Why? How do you get by? You can’t get by, remember?
      A. Because I only providing for myself right now. I don’t have to pay her
      credit card every month and --
      Q. Her credit card didn’t have enough on it to put you in the hole.
      A. It was four, $500, plus I paid her Chase card about five months before
      she left.
      Q. So without her in the house, you no longer need this extra 20 or 30,000 a
      year. Is that what you’re telling the Court? And you’re not getting it
      anymore?
      A. No, I’m not getting anything.

                                          ***

      Q. Mr. Abed, those, what I’ve just shown you, these are a couple of those
      deposits. That’s all I received, for some reason. In 2014, the checks were
      written out to you by United Auto and they would have specific cars
      written on them. Why is that?
      A. Those funds came from those vehicles sold, that’s why.
      Q. Why put that on there for you? I mean, if it’s a gift, what difference
      does it make?
      A. It’s just the record for them to know. I mean, that’s the vehicle my
      uncle and my father sold. That’s where the funds came from. That’s the
      only reason that’s on there.

     Husband’s father, Fawzi Abed, testified regarding his financial assistance to
Husband as follows:

      Q. For the years 2014, 2015, what do you think you made then?
      A. I made 20, 24, 26,000; that’s it.
                                          -9-
      Q. That’s all?
      A. Yes.
      Q. Then --
      A. One month I sell five cars, three cars, one month zero car. Didn’t sell
      nothing.
      Q. Oh, I understand.
      A. It’s dead. Business is not good.
      Q. So how does your son manage to get 30,000 in 2014 off of your business
      if you’re only making 20?
      A. What is that? I’m sorry. What’s your question again?
      Q. Your son --
      A. Uh-huh.
      Q. -- he has been given, in his account, at least $30,000 from your business.
      A. Uh-huh.
      Q. But yet you only make about $20,000. How is that?
      A. He is good salesman. He sells -- he sell a bunch of car, not for just -- he
      sell for United, he sell a few for -- he making commission.

                                           ***

      Q. Does he sell cars now, or in the past?
      A. No, in the past.
      Q. When did he sell them?
      A. Before he -- before he got engaged, 2012.
      Q. Okay. The money he got for the down payment on the house, do you
      know where it came from?
      A. It came from the -- from my own brother.
      Q. Okay.
      A. United Auto, yes.
      Q. What else do you do besides sell cars there?
      A. Auto repair.
      Q. And what else besides auto repair, sell cars, what else?
      A. That’s it.

       In January 2017, the Trial Court entered its final decree granting Wife a divorce
based upon the ground of inappropriate marital conduct. In a separate permanent
parenting plan entered, Wife was designated primary residential parent of the Child,
keeping the Child with Wife 285 days per year to Husband’s 80. In its decree, the Trial
Court stated, in relevant part:



                                           -10-
        5. That the parties stipulated the marital home’s fair market value is
$264,000.00, with a mortgage of $174,864.32. Further, the parties
stipulated to an equity in the amount of $89,135.68. The proceeds from the
sale of the marital home shall be divided equally between the parties with
Husband receiving 50% and Wife receiving 50%. The marital home shall
be listed for sale with Realtor, George Weeks, as the agent, to be sold
within five (5) months. If the marital home is not sold by agreement during
said five (5) months, then it shall be placed with Auctioneer, Jay Cash, to
be placed up for auction.
        6. That until such time as the marital home is sold, Husband shall
remain in the home. Husband shall be responsible for the mortgage,
utilities and day-to-day maintenance of the marital home until it is sold.

                                     ***

        11. That the Court finds there is no proof of a physical assault, of
physical abuse, committed by Husband upon Wife;
        12. That during the marriage, Wife’s Mercedes was sold for
$4,500.00. She loaned $2,000.00 to Husband, giving her a profit of
$2,500.00. Then, following Wife’s graduation from college, Husband
gifted Wife with a Cadillac, which was titled in his father’s name. Later,
Husband’s father took the car back and sold it. The value on said car was
listed as $15,900.00. Therefore, minus the $2,500.00 Wife made from the
sale of her Mercedes, Husband shall reimburse Wife with $13,400.00 to
compensate for the loss of the Cadillac;

                                     ***

        14. That Wife’s income is $59,500.08 per year, being $4,958.34 per
month. Husband’s income is $69,883.04, being $45,383.04 from his job at
Nissan and $24,500.00 from his work with his father, being a total of
$5,823.59 per month;
        15. That regarding custody of the parties’ minor child, and pursuant
to TENN. CODE ANN. §36-6-106, the Court finds as follows:
        a. That through no fault of Husband, regarding the strength, nature,
and stability of the child’s relationship with each parent, including whether
one (1) parent has performed the majority of parenting responsibilities
relating to the daily needs of the child, falls in favor of Wife;
        b. That concerning each parent’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
                                     -11-
close and continuing parent-child relationship between the child and both of
the child’s parents, consistent with the best interest of the child, this factor
falls in favor of Wife. However, the Court notes that Wife’s claims of fear
about Husband is called into question, as she allowed Husband parenting
time over the Thanksgiving Holiday as it was convenient for her;

                                      ***

       e. That concerning 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, this factor falls in favor of Wife, even
though Husband has expressed the desire to have more time and
responsibility;
       f. That concerning the love, affection, and emotional ties existing
between each parent and the child, this factor is equal between the parties.
It is noted the minor child has not been around Husband as much as
Husband wanted him to be;

                                      ***

       16. That Husband should have been seeing his child a whole lot
more than he’s been seeing the child. Husband should have been with the
child just as much as Wife to have opportunities to be with and around the
child and there is nothing that indicated from the presentation of the
evidence before the Court that would have restricted Husband in any way;
       17. That Wife is hereby named Primary Residential Parent, and her
school zone will be the school zone for the child;
       18. That Husband shall have residential parenting time from 9:00
a.m. on Saturday morning until noon on Monday every other weekend. If
the Father’s Monday falls on one of the Monday holidays, he will keep the
child until the following Tuesday at noon;
       19. That Wife shall transport the child to Husband on Saturday
mornings at 9:00 a.m. and Husband shall transport the child to Wife on
Monday, or Tuesday following a Monday holiday, if Father’s Monday falls
on one of the Monday holidays, at noon;
       20. That Husband shall have the child for the first two (2) weeks in
July and Wife shall have the child for the last two (2) weeks in July.
Husband’s residential time overrides the July 4th holiday;
       21. That Husband shall have the child for the Thanksgiving Holiday
in odd-numbered years and Wife shall have the child for Thanksgiving in
even-numbered years;

                                     -12-
               22. That Wife shall have the child from December 19th at noon until
       December 26th at noon, and Husband shall have the child from December
       26th at noon until January 5th at noon, every year;
               23. That Wife shall have sole decision making regarding educational
       decisions, non-emergency health-care decisions and extracurricular
       decisions. However, Wife shall not enroll the child in any extracurricular
       activities that conflict with Husband’s time and Husband’s schedule.
       Further, Wife shall inform Husband within a reasonable amount of time of
       any doctor appointments or visits for the child;
               24. That Wife can get a passport for the minor child and retain it. If
       Husband wants it, he can request if from Wife;
               25. That should Husband’s work schedule be changed from second
       shift to day shift, then his residential parenting time could be revisited;

       In February 2017, the Trial Court entered an order awarding Wife a judgment for
the $13,400 finding and holding Wife was entitled to payment for the Cadillac and also
assessing court costs. In August 2017, in response to a show cause order issued by this
Court, the Trial Court entered a final agreed order adjudicating all outstanding issues in
the case. Husband appeals to this Court.

                                        Discussion

       Although not stated exactly as such, Husband raises the following issues on
appeal: 1) whether the Trial Court erred in denying Husband’s request for equal parenting
time; 2) whether the Trial Court erred in formulating a residential parenting plan that did
not take into account the Child’s school schedule for when the Child begins school in
four years; 3) whether the Trial Court erred in imputing $24,500 to Husband’s income for
child support purposes; 4) whether the Trial Court erred in crediting Wife $400 for
daycare expenses when the maternal grandmother testified she would be willing to watch
the Child for free; and, 5) whether the Trial Court erred in awarding Wife $13,400 for the
Cadillac Husband had presented to her as a gift.

       Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727
(Tenn. 2001). A trial court’s conclusions of law are subject to a de novo review with no
presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001). Several of the issues on appeal implicate the abuse of
discretion standard. In Lee Medical, Inc. v. Beecher, 312 S.W.3d 515 (Tenn. 2010), the
Supreme Court discussed the abuse of discretion standard at length, stating:

                                            -13-
       The abuse of discretion standard of review envisions a less rigorous
review of the lower court’s decision and a decreased likelihood that the
decision will be reversed on appeal. Beard v. Bd. of Prof’l Responsibility,
288 S.W.3d 838, 860 (Tenn. 2009); State ex rel. Jones v. Looper, 86
S.W.3d 189, 193 (Tenn. Ct. App. 2000). It reflects an awareness that the
decision being reviewed involved a choice among several acceptable
alternatives. Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 708 (Tenn. Ct.
App. 1999). Thus, it does not permit reviewing courts to second-guess the
court below, White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct.
App. 1999), or to substitute their discretion for the lower court’s, Henry v.
Goins, 104 S.W.3d 475, 479 (Tenn. 2003); Myint v. Allstate Ins. Co., 970
S.W.2d 920, 927 (Tenn. 1998). The abuse of discretion standard of review
does not, however, immunize a lower court’s decision from any meaningful
appellate scrutiny. Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 211
(Tenn. Ct. App. 2002).

       Discretionary decisions must take the applicable law and the relevant
facts into account. Konvalinka v. Chattanooga-Hamilton County Hosp.
Auth., 249 S.W.3d 346, 358 (Tenn. 2008); Ballard v. Herzke, 924 S.W.2d
652, 661 (Tenn. 1996). An abuse of discretion occurs when a court strays
beyond the applicable legal standards or when it fails to properly consider
the factors customarily used to guide the particular discretionary decision.
State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007). A court abuses its
discretion when it causes an injustice to the party challenging the decision
by (1) applying an incorrect legal standard, (2) reaching an illogical or
unreasonable decision, or (3) basing its decision on a clearly erroneous
assessment of the evidence. State v. Ostein, 293 S.W.3d 519, 526 (Tenn.
2009); Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249
S.W.3d at 358; Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of
Nashville, 154 S.W.3d at 42.

       To avoid result-oriented decisions or seemingly irreconcilable
precedents, reviewing courts should review a lower court’s discretionary
decision to determine (1) whether the factual basis for the decision is
properly supported by evidence in the record, (2) whether the lower court
properly identified and applied the most appropriate legal principles
applicable to the decision, and (3) whether the lower court’s decision was
within the range of acceptable alternative dispositions. Flautt & Mann v.
Council of Memphis, 285 S.W.3d 856, 872-73 (Tenn. Ct. App. 2008)
(quoting BIF, a Div. of Gen. Signal Controls, Inc. v. Service Constr. Co.,
No. 87-136-II, 1988 WL 72409, at *3 (Tenn. Ct. App. July 13, 1988) (No
                                    -14-
       Tenn. R. App. P. 11 application filed)). When called upon to review a
       lower court’s discretionary decision, the reviewing court should review the
       underlying factual findings using the preponderance of the evidence
       standard contained in Tenn. R. App. P. 13(d) and should review the lower
       court’s legal determinations de novo without any presumption of
       correctness. Johnson v. Nissan N. Am., Inc., 146 S.W.3d 600, 604 (Tenn.
       Ct. App. 2004); Boyd v. Comdata Network, Inc., 88 S.W.3d at 212.

Beecher, 312 S.W.3d at 524-25.

       We first address whether the Trial Court erred in denying Husband’s request for
equal parenting time. Husband argues that, in light of the statutory requirement that
custody arrangements permit both parents to enjoy maximum participation in the child’s
life consistent with the child’s best interest, the Trial Court found nothing to justify such
an imbalanced grant of parenting time in Wife’s favor. Wife argues in response that
Husband was abusive to her during the marriage and that, in addition, Husband’s working
the second shift at work means he would be unable to see the Child very much anyway.

       Trial judges are afforded considerable discretion in arriving at the details of
parenting arrangements. Armbrister v. Armbrister, 414 S.W.3d 685, 693 (Tenn. 2013).
Courts are to utilize the following factors in custody determinations:

       (a) In a suit for annulment, divorce, separate maintenance, or in any other
       proceeding requiring the court to make a custody determination regarding a
       minor child, the determination shall be made on the basis of the best
       interest of the child. In taking into account the child’s best interest, the
       court shall order a custody arrangement that permits both parents to enjoy
       the maximum participation possible in the life of the child consistent with
       the factors set out in this subsection (a), the location of the residences of the
       parents, the child’s need for stability and all other relevant factors. The
       court shall consider all relevant factors, including the following, where
       applicable:

       (1) The strength, nature, and stability of the child’s relationship with each
       parent, including whether one (1) parent has performed the majority of
       parenting responsibilities relating to the daily needs of the child;

       (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,
                                             -15-
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-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;

(3) Refusal to attend a court ordered parent education seminar may be
considered by the court as a lack of good faith effort in these proceedings;

(4) The disposition of each parent to provide the child with food, clothing,
medical care, education and other necessary care;

(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;

(6) The love, affection, and emotional ties existing between each parent and
the child;

(7) The emotional needs and developmental level of the child;

(8) The moral, physical, mental and emotional fitness of each parent as it
relates to their ability to parent the child. The court may order an
examination of a party under Rule 35 of the Tennessee Rules of Civil
Procedure and, if necessary for the conduct of the proceedings, order the
disclosure of confidential mental health information of a party under § 33-
3-105(3). The court order required by § 33-3-105(3) must contain a
qualified protective order that limits the dissemination of confidential
protected mental health information to the purpose of the litigation pending
before the court and provides for the return or destruction of the
confidential protected mental health information at the conclusion of the
proceedings;

(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;

                                     -16-
       (10) The importance of continuity in the child’s life and the length of time
       the child has lived in a stable, satisfactory environment;

       (11) Evidence of physical or emotional abuse to the child, to the other
       parent or to any other person. The court shall, where appropriate, refer any
       issues of abuse to juvenile court for further proceedings;

       (12) 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;

       (13) 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 preference of older children should normally be given greater weight
       than those of younger children;

       (14) Each parent’s employment schedule, and the court may make
       accommodations consistent with those schedules; and

       (15) Any other factors deemed relevant by the court.

Tenn. Code Ann. § 36-6-106(a)(2017).

        The Trial Court’s findings relative to this issue are favorable to both parents. The
Trial Court found that Wife enjoyed a closer relationship with the Child because she was
granted more time with the Child during the pendency of the case. Despite Wife’s
contentions, the Trial Court found no evidence of any physical abuse perpetrated by
Husband. Given the Trial Court’s findings, it is puzzling why the Trial Court entered a
permanent parenting plan granting Husband only 80 days of parenting time with the
Child per year to Wife’s 285. In short, the permanent parenting plan entered by the Trial
Court contradicts the Trial Court’s own favorable findings regarding Husband. The
evidence does not preponderate against these findings. Husband’s late work schedule in
itself does not justify such a minimal award of parenting time. Given the evidence in the
record on appeal, the Trial Court’s own findings, and the statutory goal of maximum
participation for both parents in the life of the child, the Trial Court erred in granting
Husband only 80 days per year with the Child. We, therefore, vacate the Trial Court’s
judgment as it relates to the residential schedule of the permanent parenting plan and
remand for the Trial Court to award Husband significantly more time with the Child to
comply with our General Assembly’s mandate that the custody arrangement provides for
both parents to have the maximum participation in their child’s life as consistent with all
relevant factors. On remand, the Trial Court is not required to award precisely equal time
                                            -17-
to both parents, and we do not disturb the Trial Court’s designation of Wife as primary
residential parent.

       In a related issue, we address whether the Trial Court erred in formulating a
residential parenting plan that did not take into account the Child’s school schedule for
when the Child begins school in four years. We already have vacated the residential
schedule ordered by the Trial Court. On remand, the Trial Court is not required to peer
into the future to guess what the Child’s school schedule will be, or indeed, what the
status of both parents will be in four years. The Trial Court did not err in declining to
account for as yet unascertainable future facts for when the Child reaches school age, and
it need not attempt any such clairvoyance on remand.

       We next address whether the Trial Court erred in imputing $24,500 to Husband’s
income for child support purposes. The Trial Court found that Husband earns $45,383.04
from Nissan and imputed $24,500 annual income to Husband from his work at his
father’s body shop. Husband argues that only the Nissan figure is reliable and should be
used exclusively to establish his income, and that the imputed figure is groundless.
Regarding imputing income for child support purposes, we have stated:

              The Tennessee Child Support Guidelines provide that income may
      be imputed to a parent when the court determines that the parent is
      voluntarily underemployed. Wadhwani v. White, No. M2015-01447-COA-
      R3-CV, 2016 WL 4579192, at *13 (Tenn. Ct. App. Aug. 31, 2016) (citing
      Tenn. Comp. R. & Regs. 1240-02-04-.04). The guidelines provide factors
      to be considered when determining whether a parent is willfully and
      voluntarily underemployed or unemployed. Richardson v. Spanos, 189
      S.W.3d 720, 726 (Tenn. Ct. App. 2005). The factors include, inter alia, the
      parent’s past and present employment; the parent’s education, training, and
      ability to work; the parent’s role as stay-at-home parent; and any additional
      factors deemed relevant to the particular circumstances of the case. See
      Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(iii).

             The issue of voluntary underemployment is a question of fact that
      requires careful consideration of all the attendant circumstances. Owensby
      v. Davis, No. M2007-01262-COA-R3-JV, 2008 WL 3069777, at *4 (Tenn.
      Ct. App. July 31, 2008) (citing Richardson, 189 S.W.3d at 726). We afford
      the trial court considerable discretion in this determination. Thayer v.
      Thayer, No. M2015-00194-COA-R3-CV, 2016 WL 4056316, at *4 (Tenn.
      Ct. App. July 26, 2016) (citing Willis v. Willis, 62 S.W.3d 735, 738 (Tenn.
      Ct. App. 2001)). “The trial court’s decision is entitled to a presumption of
      correctness, particularly ‘when it is premised on the trial court’s singular
                                           -18-
      ability to ascertain the credibility of the witnesses.’ ” Id. (citing Reed v.
      Steadham, No. E2009-00018-COA-R3-CV, 2009 WL 3295123, at *2
      (Tenn. Ct. App. Oct. 14, 2009)).

Ghorashi-Bajestani v. Bajestani, No. E2016-00063-COA-R3-CV, 2017 WL 809880, at
*9 (Tenn. Ct. App. March 1, 2017), no appl. perm. appeal filed.

       The Trial Court heard testimony at trial concerning Husband’s father’s business,
and Husband’s relationship with it. It is undisputed that Husband received money from
his father. It is clear from the record that the Trial Court believed that this money was
not merely a gift but rather that Husband actually worked at his father’s business.
Husband’s father testified that Husband is a “good salesman” who earns “commission.”
Checks to Father from his father’s business, United Auto, even reference specific cars in
the notation as having been sold at United Auto. The Trial Court thus had a factual basis
on which to conclude that Husband has worked and is fully capable of working as a
salesman in addition to his job at Nissan. Given these findings by the Trial Court as to
Husband’s work history at United Auto during the parties’ marriage, Husband is
voluntarily underemployed. The evidence does not preponderate against any of the Trial
Court’s findings relevant to this issue. We affirm the Trial Court on this issue.

        We next address whether the Trial Court erred in crediting Wife $400 for daycare
expenses when the maternal grandmother testified she would be willing to watch the
Child for free rather than put the Child out on the street. The maternal grandmother did
testify that she would watch the Child for free rather than let him roam unattended, if it
came to that. However, the fact remains that Wife does pay her mother $400 per month
to watch the Child. That the grandmother would not abandon the Child if Wife stopped
paying does not mean that Wife should not be credited for the money she pays her mother
to watch the Child. We affirm the Trial Court as to this issue.

        The final issue we address is whether the Trial Court erred in awarding Wife
$13,400 for the Cadillac Husband had presented to her as a gift. Before we even reach
the issue of valuation, we first must consider whether this property was classified
correctly. Marital property is defined as “[A]ll real and personal property, both tangible
and intangible, acquired by either or both spouses during the course of the marriage up to
the date of the final divorce hearing and owned by either or both spouses as of the date of
filing of a complaint for divorce . . . .” Tenn. Code Ann. § 36-4-121 (b)(1)A)(2017). The
Cadillac was not owned by Husband even though he presented it to Wife as though it
were a gift. The Cadillac originated with Husband’s father who eventually repossessed
it. We believe the Trial Court placed undue emphasis on the presentation of the Cadillac
as a gift. One may place a bow on something and present it to someone but that does not

                                           -19-
mean he or she owns the item and is in a position to give it to someone as a gift. We find
that the Cadillac was not marital property subject to division in the first place.
        When Wife’s Mercedes was sold for $4,500, she received $2,500 to go toward her
tuition. Wife contends the remaining $2,000 was given to Husband’s father as a loan.
Husband states it went toward another vehicle. In any event, Wife did not receive the
$2,000. Therefore, we modify the Trial Court’s judgment to Wife of $13,400 to $2,000
to account for the $2,000 Wife never received from Husband’s sale of her Mercedes.

       In summary, we vacate the residential parenting schedule entered by the Trial
Court and remand for the Trial Court to award Husband significantly more time with the
Child. The current residential parenting schedule entered by the Trial Court, however,
will be followed until the Trial Court promptly complies with our decision to enter a new
parenting schedule. We also modify the Trial Court’s monetary judgment to Wife from
$13,400 to $2,000. We affirm the Trial Court on all other matters.

                                       Conclusion

       The judgment of the Trial Court is affirmed as modified, in part, and vacated, in
part, and this cause is remanded to the Trial Court for collection of the costs below and
further proceedings consistent with this Opinion. The costs on appeal are assessed one-
half equally between the parties, the Appellant, Waleed Fawzi Abed, and his surety, if
any, and the Appellee, Wafa Badawi Hindiyeh.



                                         ____________________________________
                                         D. MICHAEL SWINEY, CHIEF JUDGE




                                           -20-
