                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   JUNE 14, 2000 Session

          FRANK AND BETTY WARD v. BOB AND JUDY TURNER

                  Direct Appeal from the Circuit Court for Overton County
                        No. 3441; The Honorable Vernon Neal, Judge



                   No. M1999-00719-COA-R3-CV - Filed October 18, 2000


This appeal arises out of a custody dispute between maternal and paternal grandparents. The issue
of custody arose after the children’s parents were killed in an automobile accident. The Overton
County Circuit Court reversed the judgment of the juvenile court and awarded custody to the
maternal grandparents.

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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY KIRBY LILLARD, J., joined.

Robert Todd Jackson, Gary D. Copas, for the Appellants

John B. Nisbet, III, for the Appellees

                                            OPINION

Bob and Judy Turner appeal from the decision of the Overton County Circuit Court, which gave
primary physical custody of the parties’ grandchildren to Frank and Betty Ward. For the reasons
stated herein, we affirm the decision of the trial court.

                                I. Facts and Procedural History

        The facts of this case are not in dispute. On November 9, 1996, Brian and Donna Turner,
the parents of Savanah and Mataya Turner, were killed in an automobile accident. At the time of the
accident, no legal document existed which provided for the care of the children in the event of their
parents’ deaths. A dispute over custody arose almost immediately. Frank and Betty Ward, the
children’s maternal grandparents, filed a motion for temporary custody, as well as a petition for
permanent custody. Bob and Judy Turner, the children’s paternal grandparents, also filed for
permanent custody of the children.
         During the time following the accident, the children were living with the Wards under an
informal agreement reached shortly after the death of the children’s parents. The agreement included
liberal visitation rights for the Turners. Unfortunately, numerous disputes arose between the parties
regarding the children.1 On December 4, 1997, an agreed order was entered whereby the children
would stay with the Wards pending a final hearing on custody. A subsequent order, dated November
3, 1998, ordered that the Wards continue as the primary custodians of the children and granted the
Turners specific visitation rights.

        On March 5, 1999, the Juvenile Court of Overton County held a hearing on the matter.2 The
court considered the testimony of the parties and their various witnesses, the exhibits, home studies,
and the guardian ad litem report. The court concluded that both parties were emotionally, physically,
and financially able to care for the children. The court also found that the Wards had been the
primary caregivers since the deaths of the children’s parents. However, the court concluded that the
children’s living conditions were not stable as a result of the Wards refusal to allow the children
more contact with the Turners. As such, the court concluded that the Turners should be given
primary custody of the children, with the Wards entitled to liberal visitation.

        After the Juvenile Court decision, the Wards immediately filed a notice of appeal and motion
to stay the juvenile court judgment in the Circuit Court of Overton County. After a hearing
conducted on July 14, 1999, the Circuit Court awarded legal custody of the children to the Wards.
Under the court’s order, the children would live with the Wards during the school year, with the
Turners having specific visitation rights. During the summer, the children would live with the
Turners, with the Wards having specific visitation rights during that time. The order also provided
for the parties’ respective rights to the children on holidays and birthdays. It is from this order that
the present appeal arises.

                                               II. Law and Analysis

        As an initial matter, we question whether the parties would have been satisfied with any
decision that the trial court could have made. This case is tragic not only because these children have
been left without parents, but also in the fact that the parties seem unable to work together in the best
interest of their grandchildren. The unwillingness of these parties to compromise cannot be
remedied through the judicial process, and we have no doubt that our decision will be no more
acceptable than was the trial court’s decision.

         Essentially, the trial court’s decision attempted to provide a workable solution to a complex
situation. Disregarding the concept of legal custody for a moment, the trial court fashioned a remedy
that allowed for both parties to have the children for extended periods of time. During the time that
the children were living with one set of grandparents, the other grandparents were given liberal


       1
        Most of these disputes invo lve a lack of cooperation between the parties.

       2
           The cas e had pre viously been transferred fro m the Chan cery court to Juvenile co urt.

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visitation.3 In this regard, we believe the trial court attempted to strike a balance between the rights
and interests of both sets of grandparents. We find ourselves unable to provide a scenario which
would be any more fair or just.

        The trial court vested legal custody of the children with the Wards. Our review of the trial
court’s decision is de novo upon the record of the trial court, accompanied by a presumption of the
correctness of the finding, unless the preponderance of the evidence is otherwise. T.R.A.P. 13(d);
See also Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn.1984); Bah v. Bah, 668 S.W.2d 663 (Tenn.
Ct. App.1983). Tenn. Code Ann. § 36-6-106 provides the relevant factors to be considered when
a court is confronted with a question of custody. That section provides:

                   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, such determination shall be made upon the basis of the best interest of the
         child. The court shall consider all relevant factors including the following where
         applicable:

                   (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;
                   provided, that where there is a finding, under § 36-6-106(8), of child
                   abuse, as defined in §§ 39-15-401 or 39-15-402, or child sexual
                   abuse, as defined in § 37-1-602, by one (1) parent, and that a non-
                   perpetrating parent has relocated in order to flee the perpetrating
                   parent, that such relocation shall not weigh against an award of
                   custody;

                   (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;



        3
          The trial court’s order specified who would have the children on : spring break, Memo rial Day, July 4 th, Labor
Day, Halloween, Thanksgiving, Christmas, Mother’s Day, Father’s Day, as well as on the children’s respective birthdays.
W e must commend the trial court on the clarity, specificity, and the ultimate fairness of its order in regard to visitation.

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               (7) 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 preferences of older children should normally be given
               greater weight than those of younger children;

               (8) Evidence of physical or emotional abuse to the child, to the other
               parent or to any other person; provided, that where there are
               allegations that one (1) parent has committed child abuse, [as defined
               in §§ 39-15-401 or 39-15-402], or child sexual abuse, [as defined in
               § 37-1-602], against a family member, the court shall consider all
               evidence relevant to the physical and emotional safety of the child,
               and determine, by a clear preponderance of the evidence, whether
               such abuse has occurred. The court shall include in its decision a
               written finding of all evidence, and all findings of facts connected
               thereto. In addition, the court shall, where appropriate, refer any
               issues of abuse to the juvenile court for further proceedings;

               (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.

               (10) Each parent’s past and potential for future performance of
               parenting responsibilities, including the willingness and ability for
               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.


        Based upon our review of the record, we are unable to say that the evidence preponderates
against the trial court decision. Many of the factors listed in T.C.A. § 36-6-106 are either
inapplicable, or do not justify awarding custody to one party over the other. Both the Wards and
Turners are suitable as the primary custodians of the children. Both sets of grandparents clearly love
these children. Nobody questions the parties’ emotional, physical, or financial ability to care for the
children. However, we believe the trial court sought stability for the children by placing them with
the Wards. The record indicates that the children have lived with the Wards for the majority of the
time since their parents were killed. In our opinion, that is one factor which preponderates in favor
of one party over the other.

        We believe that this is the type of factual situation where any decision can be met with
criticism, but we are bound by our standard of review. The trial court was in the best position to
judge the evidence. Based on our review of the record, we are unable to conclude that the
preponderance of the evidence goes against the trial court decision. It is our sincere hope that these
parties will find common ground in their love for the children. The judicial process cannot provide


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the remedy they seek, as neither party has an exclusive claim to the children. We believe the trial
court’s decision strikes the best possible balance between each party’s interests. As such, the
Turners have failed to overcome the presumption of correctness that attaches to the trial court’s
findings.

                                           Conclusion

       For the aforementioned reasons, the decision of the trial court giving primary physical
custody to Frank and Betty Ward is affirmed. Costs of this appeal are taxed to the Appellants, Bob
and Judy Turner, for which execution may issue, if necessary.




                                                      ___________________________________
                                                      ALAN E. HIGHERS, JUDGE




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