                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                    August 10, 2004 Session

                                         J.E.B. v. J.C.W.

                       Appeal from the Juvenile Court for Blount County
                          No. 12574    William Terry Denton, Judge



                                   No. E2003-02782-COA-R3-JV


This is a child custody case. After a trial, the trial court designated the Father as primary residential
custodian of the parties’ child. Mother appeals, arguing that the trial court should have awarded her
primary residential custody. We find that the evidence does not preponderate against the trial court’s
finding that the child’s best interests are served by awarding Father primary residential custody.
Consequently, we affirm the judgment of the trial court.

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

Kevin W. Shepherd, Maryville, for the Appellant J.C.W.

Sandra E. Myatt, Maryville, for the Appellee J.E.B.

                                              OPINION

                         I. Factual Background and Procedural History

        The parties in this case were never married. Father filed a petition to establish paternity of
their child (DOB Sept. 29, 1998) on July 17, 2001, shortly before the parties separated. Father’s
paternity was admitted and established by agreed order entered by the court on August 20, 2001. The
parties had been living together in Maryville, Tennessee until the time of Father’s petition, but
shortly thereafter, Mother moved to Smithville, Tennessee in DeKalb County.

        The agreed order establishing Father’s paternity also provided that custody of the child was
granted “jointly and equally” to the parties, and that they would split parenting time by alternating
seven-day periods of time with the child. The agreed order further provided that both parties desired
to continue as joint and equal custodians of the child until the child started school. The order further
provides that “[t]his custody arrangement shall continue until such time as the mandatory age for
school attendance at which time, if the parties are unable to agree upon a primary residential
custodian, this matter shall be brought back before the Court for further consideration.”

         After Mother’s move to Smithville, the parties maintained their practice of spending
alternating weeks with the child. On February 8, 2002, Mother filed a petition to modify the custody
and visitation arrangement, noting that “in one year, the parties’ child will be enrolled in school” and
alleging that “it is important that the child have one home for purposes of consistency and stability
for the child.” Mother requested the court designate her the primary residential custodian. Father
filed a counter-petition in which he sought primary residential custody of the child.

         On November 22, 2002, a hearing was held before the juvenile court referee, at which the
parties each testified and called witnesses. At the conclusion of that hearing, the referee announced
his decision that Father would be the primary residential custodian. Mother then filed a petition for
rehearing by the Blount County Juvenile Court judge, which was granted. On May 28, 2003, another
full hearing was held. At the conclusion of the second hearing, the trial court ordered each party to
submit a proposed parenting plan. After the parties complied with this request, the trial court entered
an order on October 23, 2003 finding that “the best interest of the child would be that the Father be
designated primary residential custodian of the minor child[.]” Although it is not completely clear
from the record, it appears that the trial court adopted and incorporated Father’s parenting plan in
its final judgment. Mother appeals.

                                  II. Issue Presented for Review

        Mother has not included a statement of the issues presented for review in her brief. Based
on our review of her brief and oral argument, it is clear that the sole issue Mother raises in this
appeal is as follows:

       Whether the trial court erred in designating Father the primary residential custodian of the
       child.

                                      III. Standard of Review

        In this non-jury case, our review is de novo upon the record of the proceedings below; but
the record comes to us with a presumption of correctness as to the trial court's factual determinations
which we must honor unless the evidence preponderates against those findings. Tenn. R.App. P.
13(d); Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.1995); Union Carbide Corp. v.
Huddleston, 854 S.W.2d 87, 91 (Tenn.1993). The trial court's conclusions of law, however, are
accorded no such presumption. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996);
Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.1993).




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                                             IV. Analysis

        In cases involving a custody dispute, courts are guided by Tenn. Code Ann. § 36-6-106.
That statute provides as follows in part pertinent to the present case:

                (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, 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. . .

                (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;
                                *               *                *

                (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
        close aneacontfnueng re rts tto fhilid ratetannshicob rtwee the child and the other parent,
                d h o i th i papanen -c ac lit ela iod en p ueage an
        consistent with the best interest of the child.

        The parties agree that a material change in circumstances has occurred in that the child has
now reached school age and, because the parties live over two hours apart, they cannot continue
alternating custody every week with a child enrolled in school. Circumstances now dictate that one
of the parents be declared the primary residential custodian, the one who lives in the place where the
child will attend school. In its order, the trial court made no findings of fact beyond its determination
that awarding Father primary residential custody served the child’s best interests.
        In this case, considering the applicable statutory factors, Mother has, simply stated, pointed
to very little evidence suggesting that the trial court erred in its ruling. This is a very difficult case

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in that both parties appear to have done a good job of parenting and are qualified and capable of
raising the child. The Juvenile Court referee found that it was a “rare situation that the court has to
deal with exceptionally fine parents, and I do believe that each of you are truly trying to be the best
parent that you can be notwithstanding the frustrations that life brings, and having the separation of
distance, and not having a relationship between the two of you except through your child.” Mother
states in her brief that “the evidence. . .shows that each parent appears to be equally positioned in
almost every criteria found in the law for determining custody.” Mother argues that she “excels in
at least the area of being able to provide more hands-on care, as well as having an extended family
in the area of her residence.” Mother, who has recently remarried, points to the testimony that she
is able to stay home with the child during non-school hours, while Father has to work, and also that
she has more extended family living near her than does Father.


         Father responds by highlighting evidence that Mother has been uncooperative and
uncommunicative regarding the child’s medical needs and recreational activities, and she has refused
to be flexible in scheduling visitation. On one occasion, this lack of communication resulted in the
scheduling of the same minor surgical procedure for the child with two different doctors at two
different times. Father also testified that he has remained in the same Maryville residence in which
the parties lived until their separation, whereas Mother testified that she has resided in three different
places in the two years since the separation. Father testified that on occasion Mother had lost her
temper and cursed at him in front of the child.


        A determination of custody and visitation often hinges on subtle factors such as the parents’
demeanor and credibility during the trial proceedings. Gaskill v. Gaskill, 936 S.W.2d 626, 631
(Tenn.App. 1996). In this case, it appears probable that the court’s determination of the parties’
relative demeanor and credibility played a significant role in its ruling. At the hearing before the trial
court, Mother was cross-examined on four separate occasions by the playing of an audiotape of
telephone conversations between her and Father. While it appears that these tapes were played in
an attempt to bring Mother’s credibility into question, the tapes’ contents are not contained in the
record before us.


        Under these circumstances, we are guided by the following comments and observations made
recently by this Court in a custody dispute case, which are pertinent to the present case:


                The credibility of witnesses is a matter that is peculiarly within the
                province of the trial court. See Bowman v. Bowman, 836 S.W.2d 563,
                567 (Tenn.Ct.App.1991). That court has a distinct advantage over us:
                it sees the witnesses in person. Unlike an appellate court--which is
                limited to a "cold" transcript of the evidence and exhibits--the trial
                court is in a position to observe the demeanor of the witnesses as they
                testify. This enables the trial court to make assessments regarding a
                witness's memory, accuracy, and, most importantly, a witness's


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                truthfulness. The cases are legion that hold a trial court's
                determinations regarding witness credibility are entitled to great
                weight on appeal. See, e.g., Massengale v. Massengale, 915 S.W.2d
                818, 819 (Tenn.Ct.App.1995). In the absence of unrefuted authentic
                documentary evidence reflecting otherwise, we are loathe to
                substitute our judgment for the trial court's findings with respect to
                the credibility of the witnesses.
                "Trial courts are vested with wide discretion in matters of child
                custody...." Varley v. Varley, 934 S.W.2d 659, 665
                (Tenn.Ct.App.1996) (quoting Koch v. Koch, 874 S.W.2d 571, 575
                (Tenn.Ct.App.1993)). This being the case, we will not reverse a trial
                court's decision regarding custody unless the record clearly
                demonstrates that the court has abused its discretion. Otis v.
                Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn.1992). As
                the Supreme Court has cautioned, "a discretionary judgment of a trial
                court [should not be disturbed] unless it affirmatively appears that the
                trial court's decision was against logic or reasoning, and caused an
                injustice or injury to the party complaining." Marcus v. Marcus, 993
                S.W.2d 596, 601 (Tenn.1999) (quoting Ballard v. Herzke, 924
                S.W.2d 652, 661 (Tenn.1996)).


 Lockmiller v. Lockmiller, 2003 WL 23094418 at *4, 2003 Tenn.App. LEXIS 953, C/A No. E2002-
 02586-COA-R3-CV (Tenn.App.E.S. filed Dec.30, 2003) (emphasis and brackets in original).


                                            V. Conclusion


        Bearing the above in mind, and having considered the pertinent statutory factors and the
record as a whole, we do not find that the evidence preponderates against the trial court’s finding that
the child’s best interests are served by awarding Father primary residential custody. We affirm the
judgment of the trial court. The case is remanded for collection of costs below. Costs on appeal are
assessed to the Mother, J.C.W., for which execution may issue, if necessary.



                                                        _______________________________
                                                        SHARON G. LEE, JUDGE




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