                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                  December 13, 2002 Session

     FERRYL THERESITA McCLAIN v. RICHARD PERRY McCLAIN

                       Appeal from the Circuit Court for Sullivan County
                          No. C2697     John S. McLellan III, Judge

                                     FILED MARCH 21, 2003

                                  No. E2002-00913-COA-R3-CV


This is a divorce case. The trial court dissolved the parties’ marriage based upon a stipulated ground
for divorce; divided the marital property; and awarded Richard Perry McClain (“Father”) primary
physical custody of the parties’ two minor children. Ferryl Theresita McClain (“Mother”) appeals
the grant of custody to Father. In addition, she raises several procedural issues. We affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and HERSCHEL P. FRANKS , J., joined.

Leslie W. Bailey, Jr., Kingsport, Tennessee, for the appellant, Ferryl Theresita McClain.

Keith A. Hopson, Kingsport, Tennessee, for the appellee, Richard Perry McClain.

                                              OPINION

                                                   I.

        The parties were married on February 2, 1991. Two children were born to their union, Brett
Aaron McClain (DOB: August 11, 1998) and Chase Ryan McClain (DOB: June 4, 2000). Mother
was a licensed pharmacist, but she apparently did not work as such after the birth of the parties’ first
child. Mother and Father co-owned a computer information systems company. The company
solicited contracts from large corporations to integrate their computer systems. Father did all of the
hands-on work for the company, traveling to the various client sites. Mother assisted with the
bookkeeping.

       In April, 1999, following an argument between the parties as to whether Mother should travel
to Ohio to see her brother’s newborn baby, Mother withdrew $5,000 from the parties’ joint bank
account, and took eight-month-old Brett and drove to Ohio, without informing Father. Mother
contends that she and Father were having problems and that she “needed some time away from him
to think.” Mother left on a Friday and returned to Kingsport the following Monday.

         Later that same month, Mother voluntarily admitted herself to Indian Path Pavilion Hospital,
suffering from depression. As a part of her hospitalization, she sought help in coping with emotional
issues associated with her marriage. She was evaluated by a psychiatric social worker who later
testified at trial that Mother was not suicidal and that she posed no risk of harm to herself or to
others.

        On June 1, 1999, Mother filed for divorce on the ground of inappropriate marital conduct.
A few months later, Mother learned that she was pregnant with the parties’ second child. In
November, 1999, at the parties’ request, the trial court entered an order of reconciliation, which
expressly suspended the divorce proceedings for six months. The parties’ second child, Chase, was
born the following June.

         In July, 2000, the parties and their children went to Louisiana. The purpose of the trip was
to attempt to reconcile Mother with her estranged father at a family reunion. While in Louisiana, the
parties had several disagreements, which resulted in Mother leaving Louisiana with Chase and flying
to Houston to stay with her sister and brother-in-law. Father returned to Kingsport with Brett. A
week and a half later, Father flew to Houston with Brett. When the parties met in Houston, Mother
told Father that she was taking the children and driving to her sister’s house to spend the night.
Mother assured Father that she and the children would return the next day at 1:00 p.m. Despite this
understanding, Mother changed her mind, after deciding that she needed some time away from
Father. Acting on the advice of her then-attorney, she withdrew $50,000 from the parties’ joint bank
account, took the children, and drove to Austin to stay with a friend. Mother did not contact Father
to tell him she was taking this action. While Mother’s sister and brother-in-law knew where Mother
was, they were instructed by Mother not to tell Father.

        Three weeks later, Mother returned to Houston with the children. During the entire three-
week time period, Father had no idea where Mother and the children were. While she was away,
Mother filed a motion to set aside the order of reconciliation. Father answered the divorce complaint
and filed a counterclaim for divorce, which was also premised upon the ground of inappropriate
marital conduct.

       In September, 2000, the trial court held hearings for the sole purpose of determining a
temporary parenting plan. At the conclusion of the hearings, the court entered an order on
September 18, 2000, in which it named Father the temporary primary residential parent. The court
based its decision on numerous factors, including Mother’s health care philosophy, 1 the court’s
concern about Mother’s mental well-being, and its concern about Mother secreting the children at


         1
           Mother testified that she is a strong believer in the power of herbal med ication and that she prefers to avoid
administering antibiotics to the children when they are ill. On cross-examination, Mother admitted that she had not given
Brett the antibiotics prescribed for him by a doctor to clear up an infection.

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locations unknown to Father. Mother was granted visitation with the children every other weekend
from 6:00 p.m. on Friday until 7:00 p.m. on Sunday, and on weekdays from 3:00 p.m. until 7:00 p.m.

        A further hearing was conducted by the trial court in July, 2001. On July 31, 2001, the court
entered a judgment of divorce, which granted the parties a divorce on a stipulated ground and
divided the parties’ marital property. The judgment also modified the visitation arrangement to
reflect the fact that the older child was then in daycare. The court noted that Father remained the
primary residential parent of the children.

        In September, 2001, following another hearing, the court designated Father as the primary
residential parent of the children, granted Mother certain visitation rights, and adopted Father’s
proposed parenting plan. The court’s ruling was memorialized by a final order in December, 2001.
Following the entry of that order, Mother filed a motion for a new trial, which she later amended.
At the conclusion of a hearing on Mother’s motion, the trial court denied the motion in full. This
appeal followed.

                                                  II.

        In this non-jury case, our review is de novo on the record of the proceedings below; however,
the record comes to us accompanied by a presumption of correctness as to the trial court’s factual
findings, a presumption that we must honor unless the evidence preponderates against those findings.
Tenn. R. App. P. 13(d). We review the trial court’s conclusions of law de novo with no presumption
of correctness. Jahn v. Jahn, 932 S.W.2d 939, 941 (Tenn. Ct. App. 1996).

       Our search for the preponderance of the evidence is tempered by the principle that the trial
court is in the best position to assess the credibility of the witnesses; accordingly, such
determinations are entitled to great weight on appeal. Massengale v. Massengale, 915 S.W.2d 818,
819 (Tenn. Ct. App. 1995); Bowman v. Bowman, 836 S.W.2d 563, 567 (Tenn. Ct. App. 1991).

                                                  III.

        Mother argues that the evidence preponderates against the trial court’s designation of Father
as the primary residential parent of the children. In support of her argument, Mother asserts that she
has been the primary caregiver for the children since their respective births; that she is a good mother
and is available during the daytime to care for the children; that she has done more to encourage a
close parent-child relationship between the children and Father than Father has done to encourage
their relationship with her; and that, prior to the parties’ separation, Father’s work schedule
prevented him from spending much time with the children.

        A trial court has broad discretion regarding a custody determination. Brumit v. Brumit, 948
S.W.2d 739, 740 (Tenn. Ct. App. 1997); Varley v. Varley, 934 S.W.2d 659, 665 (Tenn. Ct. App.
1996); Marmino v. Marmino, 34 Tenn. App. 352, 355, 238 S.W.2d 105, 107 (1950). We will not
disturb such a determination unless the record reflects an “erroneous exercise of that discretion.”


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Mimms v. Mimms, 780 S.W.2d 739, 744-45 (Tenn. Ct. App. 1989). “Absent some compelling
reason otherwise, considerable weight must be given to the judgment of a trial court in a divorce
proceeding in respect to the credibility of the parties and their suitability as custodians.” Id. at 744.

       There are “[n]o hard and fast rules . . . for determining which custody and visitation
arrangement will best serve a child’s needs.” Gaskill v. Gaskill, 936 S.W.2d 626, 630 (Tenn. Ct.
App. 1996). A custody determination is “factually driven” and “requires the courts to carefully
weigh numerous considerations.” Id. The overriding consideration is the best interest of the child.
Id.

        The factors a trial court must consider in determining the custody of children, to the extent
that they are pertinent in a given case, are set forth in Tenn. Code Ann. § 36-6-106 (2001), which
provides, in pertinent part, as follows:

                (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;

                (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; . . . .


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               (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
               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.

        In the September, 2001, hearing, the trial court, in determining the issue of custody, found
as follows:

               You know, looking at the factors under [Tenn. Code Ann. §] 36-6-
               106 again, one, as far as love and affection between the parents and
               children, that’s equal; Number 2, disposition of the parents to provide
               the child with food, clothing, medical care, education, et cetera, I feel
               under the proof here today that’s equal; Number 3, and I guess this
               goes to [the social worker’s] testimony, importance of a continuity in
               a child’s life in the length of time the child has lived in a stable
               satisfactory environment. And [the social worker] has testified that
               the children are profiting well under this and have become used to the
               routine that’s currently set. Item 4, the stability of the family unit of
               the parents. Of course living here in Kingsport, [Father] has more of
               a family unit here in place as [Mother’s] family is primarily in other
               state – or states. Item 5, the mental and physical health of the parents.
               Physical health as far as I know is relatively equal and, as I said,
               [Mother] is improved in regard to her mental well-being although I
               – you know, I have concerns as I’ve previously stated. So I think that
               would weigh in favor of [Father]. Item 6 would not be applicable;
               7 would not be applicable, that’s preference; Number 8, I don’t find
               any physical or emotional abuse to the children or under the current
               circumstances of parent to parent. Number 9, we don’t have any third
               parties who would frequent the home that I think would be harmful
               to these children, it would not be applicable.

               Number 10 I think is a factor that – “Each parent’s past and potential
               for future performance of parenting responsibilities including the
               willingness and ability of 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.” I think that factor weighs in – in favor of [Father]. I think
               [Father’s] proposal in offering joint decision making on items of


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               education, non-emergency health and religion as opposed to that of
               [Mother] is – is a sign that fits within Number 10. And – and I tried
               to give him a chance to opt out of that by my questioning of him but
               he didn’t. And I guess in his mind he – he feels like [Mother] and
               [Father] can deal with each other on these issues and try to reach a
               joint decision. So he didn’t back out on that so I – to me that is a
               reaffirmation of his verification on his proposal and indicates a – an
               intent to share as best as possible the – the parenting of these
               children.

               In reviewing both parenting plans in detail for the reasons I’ve stated
               and the findings I’ve made on the factors of [Tenn. Code Ann. §] 36-
               6-106 I designate [Father] as primary residential parent and I am
               going to execute the proposed parenting plan presented to the Court
               by [Father].

After evaluating the evidence before us, we do not find that the evidence preponderates against the
trial court’s designation of Father as the primary residential parent of the children. The trial court
weighed the evidence against all of the pertinent factors set forth in Tenn. Code Ann. § 36-6-106.
We find no abuse of discretion in the trial court’s custody determination.

                                                 IV.

        Mother raises four procedural issues for our consideration. First, Mother argues that the trial
court erred in stating from the bench that Mother’s motion for new trial, as later amended, was not
timely filed as to the trial court’s orders of September 18, 2000 and July 31, 2001. We believe that
Mother has misinterpreted the trial court’s remarks.

        Following the September, 2000, hearings in the instant case, the court entered an order on
September 18, 2000, in which it designated Father as the temporary primary residential parent. In
July, 2001, the court entered an order granting the parties a divorce and decreeing that Father would
continue to have temporary custody of the children. The trial court made its final decision naming
Father as the primary residential parent at the conclusion of another hearing in September, 2001,
which decision was memorialized by an order dated December 20, 2001. Following the entry of this
order, Mother filed her motion for new trial, in which she primarily challenged the court’s decision
with respect to custody. In doing so, she cites to testimony from the hearings in September, 2000,
and July, 2001.

        At the hearing on Mother’s motion, the trial court determined that Mother’s motion, as it
related to the hearings in September, 2000, and July, 2001, was not timely filed. On appeal, Mother
argues that she could not have filed her motion until a final order was entered in the case, which did
not occur until December, 2001. Therefore, she reasons, her motion as to all of the court’s prior
orders was timely filed.


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         As previously noted, we believe that Mother has misinterpreted the trial court’s use of the
word “timely.” We agree with Mother that her motion was timely filed under Tenn. R. Civ. P. 59.02,
which requires that a motion for new trial be filed within 30 days after the entry of judgment.
However, Mother’s motion with respect to the earlier court orders was not “timely” in the sense that
it attacked court decrees pertaining to who would serve as primary residential parent of the children
pending he further order of the court. The challenged September, 2000, and July, 2001, orders
related to temporary custody. Once the court made its ultimate decision awarding primary residential
parent status to Father, Mother’s challenge of the prior orders, as they pertained to temporary custody
during past periods of time, was rendered moot. In that sense, Mother’s motion was not “timely.”
A trial court cannot “unscramble” a “scrambled egg.” It is clear to us that the trial court fully
considered Mother’s motion to the extent that it challenged the court’s ultimate decision to designate
Father as the primary residential parent. We find no error in the court’s judgment denying Mother’s
motion for new trial.

         Next, Mother argues that the trial court erred in failing to make a written finding of the
alleged emotional abuse inflicted upon her by Father. Tenn. Code Ann. § 36-6-106(a)(8) provides
that a trial court, in making a custody determination, should consider “[e]vidence of physical or
emotional abuse . . . to the other parent . . . . The court shall include in its decision a written finding
of all evidence, and all findings of facts connected thereto.” In the instant case, Mother offered
testimony that Father had been emotionally abusive toward her. This testimony primarily related to
alleged instances of Father yelling at Mother and making unreasonable demands upon Mother. The
trial court did not make a written finding as to this alleged emotional abuse. However, in delivering
its oral ruling from the bench at the conclusion of the September, 2001, hearing, the trial court stated
as follows:

                Number 8, I don’t find any physical or emotional abuse to the children or
                under the current circumstances of parent to parent.

        While the court did not incorporate this finding into a written and filed memorandum, order,
or judgment, it clearly considered Mother’s testimony on emotional abuse and determined that there
was no such abuse. The failure of the trial court to reduce its finding to the written form was
contrary to the edict of the statute; however, the trial court’s failure does not amount to reversible
error. See Tenn. R. App. P. 36(b). The error was harmless.

        Mother next contends that the trial court erred “when it characterized, as ‘kidnapping’,
Mother’s behavior of taking the two minor children of the parties with her for a visit with a friend
in Austin, Texas without informing Father of where she and the children were.” Mother asserts that,
under Tennessee criminal law, her actions do not constitute kidnaping.

      In the September, 2001 hearing, the trial court made the following remarks concerning
Mother’s sequestration of the children in Texas:




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               I think what remains of concern to the Court, and this is over this
               whole series of hearings, is that in listening to [Mother’s] response
               under examination of – concerning the situation where she left with
               the children and I know she blames that primarily on her attorney at
               that time and says she was acting under his advise [sic] when she took
               the $50,000 and left the state. And – and basically [Mother], with the
               aid of her parents and relatives there, in essence sequestered [the
               children] until [Father] was finally able to negotiate in to be able to
               see his children and things. That – that still gives me a lot of concern
               because I wasn’t satisfied with [Mother’s] answer today in response
               to counsel’s questions. I don’t know that if – although, as I said,
               [Mother’s] improved and coping with these problems, if this gets to
               be overwhelming because of pressure having children around or
               financial pressures or other pressures that will come about with both
               these folks as they move on with their lives that – whether – whether
               [Mother] would continue to be able to cope. So that is a concern.
               Because that kind of activity to me even if you say ‘Counsel advised
               me’ is very irrational, is very punitive to the – the [Father]. It
               amounts to a kidnaping and – you know, I mean all kinds of things
               come in your mind. It’s just a very traumatic thing and I – I think –
               and when you’re considering your attorney’s advise [sic] you have to
               use your own judgment. And although I know you were under stress
               at that time and I guess in essence weren’t thinking clearly, if I boil
               down your testimony. But I think this demonstrates at least a
               propensity at one occasion and I don’t know that I don’t see a little of
               that now – maybe not to facilitate a – as best a relationship with the
               other parent – between these children and the other parent under all
               the circumstances of you all being separated and having to share time.

         While Mother’s behavior in secreting the children from Father for three weeks may not have
amounted to the criminal act of kidnaping under Tennessee law, it nonetheless was conduct that
deprived Father of access to his children. While the trial court’s use of the word “kidnaping” may
have been technically incorrect, such does not amount to reversible error. When placed in context,
it is clear that the trial court was greatly concerned about Mother’s conduct in secreting the children
from Father and it was this concern that partially motivated the court’s award of custody to Father.
Furthermore, Mother’s behavior, as alluded to by the court, evidenced a lack of willingness to
facilitate a close and continuing relationship between the children and Father. See Tenn. Code Ann.
§ 36-6-106(a)(10). Mother’s argument directed at the court’s choice of words in this case is merely
an exercise in semantics, and, as previously stated, we find no reversible error in the court’s
reference. See Tenn. R. App. P. 36(b).

      Finally, Mother argues that the trial court erred in its decision to discredit the testimony of
Mother’s expert witness because the expert did not interview both Mother and Father. We disagree.


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       In the initial hearings in this case, Mother offered the testimony of an expert witness, Judy
Millington, Ph.D. Dr. Millington, a licensed psychologist, performed a psychological evaluation of
Mother a few days before the first hearing; Dr. Millington never met with or evaluated Father. At
the conclusion of these initial hearings, the trial court, in naming Father the temporary primary
residential parent, stated as follows:

                I give very little credit . . . to Dr. Millington’s opinion, in that she did
                not interview both parents and really got one side of the story, and it’s
                always my philosophy at least that when we have these type
                evaluations that the doctor should evaluate both parents, and in other
                cases, the children are too young here, probably the children.

        This court has held that “[e]xpert testimony is not ordinarily conclusive, but is purely
advisory in character, and the trier of fact may place whatever weight it chooses upon such testimony
and may retract it if it finds that it is inconsistent with the facts or otherwise unreasonable.” England
v. Burns Stone Co., 874 S.W.2d 32, 38 (Tenn. Ct. App. 1993) (citing Gibson v. Ferguson, 562
S.W.2d 188, 189-90 (Tenn. 1976). “Even when no opposing expert testimony is offered, the trier
of facts is still bound to decide the issue upon its own fair judgment assisted by expert testimony.”
Roberts v. Roberts, 827 S.W.2d 788, 795 (Tenn. Ct. App. 1991) (citing Gibson, 562 S.W.2d at 190.)
There is nothing in the record before us to indicate that the trial court was incorrect, as a matter of
law, in discrediting the opinion of Dr. Millington. Clearly the court, in its discretion as the trier of
fact, could choose to disregard the expert’s testimony. We therefore find no error in the trial court’s
decision with respect to the opinion of Dr. Millington.

                                                    V.

        The judgment of the trial court is affirmed. This case is remanded for enforcement of the trial
court’s judgment and for collection of costs assessed below, all pursuant to applicable law. Costs
on appeal are taxed to the appellant, Ferryl Theresita McClain.



                                                          _______________________________
                                                          CHARLES D. SUSANO, JR., JUDGE




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