                                                                                        03/07/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                               January 10, 2019 Session

     KRISTEN PAULETTE STOKES V. STEVEN WADE STOKES

                 Appeal from the Circuit Court for Davidson County
                    No. 15D-1236     Phillip R. Robinson, Judge


                            No. M2018-00174-COA-R3-CV


A mother and father each sought to be named the primary residential parent of their son,
who was nine years old when the court granted the father a divorce. The trial court
designated the father as the primary residential parent and granted the mother 146 days of
residential parenting time with the child per year. The mother appealed, arguing that the
court erred in conducting its comparative fitness analysis and in concluding that the
father should be the primary residential parent. We affirm the trial court’s judgment.

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

ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and KENNY W. ARMSTRONG, J., joined.

Mark T. Freeman and Joseph W. Fuson, Nashville, Tennessee, for the appellant, Kristen
Paulette Stokes.

Paula Ogle Blair, Nashville, Tennessee, for the appellee, Steven Wade Stokes.

                                      OPINION

                     I. FACTUAL AND PROCEDURAL BACKGROUND

       Kristen Paulette Stokes (“Mother”) and Steven W. Stokes (“Father”) were married
for approximately twelve years when they separated in 2015. Their son, Noah, was born
in January 2008. Father worked as a musician and played on tours as well as at local
venues. He had some flexibility in his schedule and often worked in the evenings.
Mother worked at a variety of jobs that included bartending, bar managing, interior
design, teaching Zumba classes, and working as a personal trainer. Once Noah was born,
Mother stopped working for a period of time and focused on being a stay-at-home
mother.
      In May of 2015, Mother moved out of the marital home. She moved into an
apartment where a male friend, Larry Sterling, resided. Mother met Mr. Sterling around
2011 in an exercise class, and Mr. Sterling divorced his wife in 2013. Mr. Sterling stayed
in Mother and Father’s guest room when he needed a place to sleep during his divorce
proceedings. Father asked Mother at various times whether she was romantically
involved with Mr. Sterling, and Mother always responded “no.” When Mother moved in
with Mr. Sterling in 2015, she took Noah with her.

       Mother filed a complaint for divorce in June 2015, asserting irreconcilable
differences as grounds. She asked to be designated the primary residential parent and
sought alimony. Father filed an answer and counter-complaint for divorce in June 2016,
asserting irreconcilable differences and inappropriate marital conduct as grounds. Father
alleged that Mother was engaged in a romantic relationship with Mr. Sterling and sought
to be named the primary residential parent. Father also moved the court to enter an order
prohibiting, restraining, and enjoining Mother from allowing Noah to be in the presence
of Mr. Sterling or any of Mother’s other alleged “paramours.”

        The trial court entered a temporary restraining order on June 16, 2016, granting
Father the relief he requested. Following a show cause hearing, the court also found that
it was in the child’s best interest to remain in Father’s primary care pending a final
hearing. The court awarded Mother parenting time on the first, second, and third
weekends of each month. Mother filed a motion to reconsider, and the court modified its
earlier order by allowing Mother additional time with Noah each Thursday from the time
school was dismissed until Friday at 6:00 p.m. If either parent was unable to care for
Noah during their respective parenting time, the court ordered that the other parent had
the right of first refusal before a babysitter could be considered.

       The trial court heard this case over the course of five days starting on July 25 and
ending on November 15, 2017. Mother and Father each filed a proposed parenting plan
prior to trial in which they designated themselves as the primary residential parent.
Mother testified on July 25 that she took several trips with Mr. Sterling after he divorced
his wife and that they traveled to Gatlinburg, Disneyworld, and Colorado, sometimes
with Noah and sometimes without Noah. Mother also testified that she accompanied Mr.
Sterling to Jamaica for a wedding and that they went on a cruise together where they
shared a cabin. Some of these trips took place before she moved out of the marital home.
Mother maintained that on all of these trips her relationship with Mr. Sterling remained
platonic.

       Mr. Sterling’s former wife testified that Mr. Sterling told her in October 2011,
while they were still married, that he was in love with Mother. Contrary to Mother’s
testimony, Mr. Sterling acknowledged during his testimony on November 1, in response
to pressure from the court to be completely honest, that his relationship with Mother
became sexual in 2016. Mr. Sterling testified about a trip he took to Las Vegas with

                                           -2-
Mother in 2013 or 2014, where they had a suite with adjoining rooms, and about a trip
they took together to Arizona in 2016. Mr. Sterling initially denied having sexual
relations with Mother on any of the trips they took together. The trial court grew
impatient with Mr. Sterling, however, and it posed some questions of its own to him:

      Q: Help me with this, is there more? I mean, I don’t know that that exact
      question has been asked, but has there been more than kissing and
      fondling?

      A: Yes, sir.

      Q: Well, let’s pull the scab off this, because I’ll be honest, you-all are
      really stretching credibility here.

      A: Yes, sir.

      Q: And you understand you’re sitting in a court of law under oath?

      A: Yes, sir.

      Q: If you knowingly tell me a falsehood, it’s called aggravated perjury. It
      carries a minimum of a couple of years in the penitentiary. So, it’s time to
      be real honest. What type of behavior have you-all engaged in?

      A: We’ve had sexual intercourse in 2016.

      Q: Okay. And in the past when you’ve been saying that you didn’t, that
      was incorrect; is that correct?

      A: Say that again, Your Honor.

      Q: When you’ve been telling us that you haven’t had sexual intercourse,
      you made a misstatement; is that correct?

      A: Yes, Your Honor.

       Mother was recalled to the witness stand on the final day of trial on November 15,
2017, and she was given the opportunity to correct her earlier testimony in which she had
denied having a sexual relationship with Mr. Sterling. Mother acknowledged hearing Mr.
Sterling testify that his relationship with her became sexual beginning in 2016. The trial
court then interjected and questioned Mother about her earlier dishonesty:



                                          -3-
        THE COURT: Help me with this. Why did you sit up there and lie to me
        about it?

        THE WITNESS: Well, sir, I know I misled you.

        THE COURT: Let’s not pitty pat around.

        THE WITNESS: Okay.

        THE COURT: You didn’t [mis]lead me, you told a blatant lie under oath, a
        lie that you maintained throughout the entirety of these proceedings until
        just this moment. So, you tell me now --

        THE WITNESS: Yes, sir.

        THE COURT: -- why you lied to me.

        THE WITNESS: Well, I don’t want to split hairs, but I was not asked
        directly about my sexual relationship under direct testimony; however, I do
        acknowledge I did not tell you what I needed to tell you and I did not tell
        you when I should have told you. You told me that day, you said, Ms.
        Stokes, I’m not buying what you are shoveling. That was my moment that I
        should have told you what had happened in our relationship, and I did not. I
        fully regret it and take responsibility for that.

        THE COURT: Did you ever get any written interrogatories asking you if
        you and Mr. Sterling had engaged in any type of sexual relations or sexual
        behavior?

        THE WITNESS: Yes, sir. I had when I filled them out truthfully prior to.

        THE COURT: But, you didn’t supplement those when those things
        changed. Do you think at the time you filled them out if you told the truth
        then later on you could leave everybody under the mis-impression that
        nothing had occurred? Your attorneys didn’t tell you you have to
        supplement and update those sorts of questions?

        THE WITNESS: It wasn’t until Mr. Freeman and Mr. Fuson came into my
        world that I knew things had to change and take a new direction.[1] I was
        not told that I had to supplement.

1
Mother’s initial trial attorney withdrew from the case after the first two days of trial and was replaced by
Mark T. Freeman and Joseph W. Fuson.
                                                   -4-
       THE COURT: Tell me when you started taking a new direction until a few
       seconds ago.

       THE WITNESS: When Mr. Freeman and Mr. Fuson came into my life
       when Ms. Leininger decided to step down and withdraw. Well, the day --
       actually it comes back to the day I testified. It did not sit well with me. I
       regretted it immediately not telling you the truth. I was --

       THE COURT: But, that’s the question that I’ve asked you, why didn’t you
       tell me the truth? Why didn’t you tell opposing Counsel the truth about
       amending your interrogatories? Why didn’t you tell your husband the truth?
       Why didn’t you tell this Court the truth, unless you thought the truth would
       be damaging to you and you would get some advantage by lying about it?

       THE WITNESS: It was fear, sir. It was just fear.

       THE COURT: Well, your attorneys these are real good lawyers, they
       wouldn’t knowingly let you get up on this witness stand and tell a lie, and
       they will tell you what I told Mr. Sterling that the truth you can generally
       deal with, but a lie, there is no way you can justify it, because it means
       you’re not a credible witness. This Court can’t rely on any of your
       testimony, because you were willing to tell a false statement to me for your
       own benefit. So, everything that you’ve testified to, this Court can’t attach
       any credibility to it.

       The trial court took the case under advisement following the parties’ close of
proof. In an order dated December 28, 2017, the court awarded Father a divorce on the
ground of inappropriate marital conduct and divided the marital assets between the
parties. The court designated Father the primary residential parent and awarded Mother
146 days per year of residential time with Noah. The court ordered Mother to pay her
own attorney’s fees, $7,500 towards Father’s attorney’s fees, and $86 per month in child
support. It declined to award spousal support to either party.

        Mother filed a notice of appeal and raises just one issue on appeal. She argues that
the trial court erred when it conducted its comparative fitness analysis and concluded that
Father should be designated the primary residential parent, with Mother being awarded
just 146 days of parenting time. Father contends Mother’s appeal is frivolous and asks
this Court for an award of the attorney’s fees he has incurred on appeal.




                                           -5-
                                      II. ANALYSIS

      A. Standard of Review

       In non-jury cases such as this, we review the trial court’s findings of fact de novo
upon the record, according them a presumption of correctness unless the evidence
preponderates otherwise. TENN. R. APP. P. 13(d); Armbrister v. Armbrister, 414 S.W.3d
685, 692 (Tenn. 2013). We review questions of law de novo, attaching no presumption
of correctness to the trial court’s legal conclusions. Armbrister, 414 S.W.3d at 692;
Kendrick v. Shoemake, 90 S.W.3d 566, 569 (Tenn. 2002).

       This court has noted that “[c]ustody and visitation determinations often hinge on
subtle factors, including the parents’ demeanor and credibility during the divorce
proceedings themselves” and that “[t]rial courts must be able to exercise broad discretion
in these matters.” Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996). Our
Supreme Court has addressed parenting plans and has described the role of appellate
review as follows:

      Because decisions regarding parenting arrangements are factually driven
      and require careful consideration of numerous factors, Holloway v. Bradley,
      190 Tenn. 565, 230 S.W.2d 1003, 1006 (1950); Brumit v. Brumit, 948
      S.W.2d 739, 740 (Tenn. Ct. App. 1997), trial judges, who have the
      opportunity to observe the witnesses and make credibility determinations,
      are better positioned to evaluate the facts than appellate judges. Massey-
      Holt v. Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007). Thus,
      determining the details of parenting plans is ‘“peculiarly within the broad
      discretion of the trial judge.”’ Suttles v. Suttles, 748 S.W.2d 427, 429
      (Tenn. 1988) (quoting Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn.
      Ct. App. 1973)). “It is not the function of appellate courts to tweak a
      [residential parenting schedule] in the hopes of achieving a more reasonable
      result than the trial court.” Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn.
      2001). A trial court’s decision regarding the details of a residential
      parenting schedule should not be reversed absent an abuse of discretion. Id.
      “An abuse of discretion occurs when the trial court . . . appl[ies] an
      incorrect legal standard, reaches an illogical result, resolves the case on a
      clearly erroneous assessment of the evidence, or relies on reasoning that
      causes an injustice.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn.
      2011). A trial court abuses its discretion in establishing a residential
      parenting schedule “only when the trial court’s ruling falls outside the
      spectrum of rulings that might reasonably result from an application of the
      correct legal standards to the evidence found in the record.” Eldridge, 42
      S.W.3d at 88.


                                           -6-
Armbrister, 414 S.W.3d at 693; see also C.W.H. v. L.A.S., 538 S.W.3d 488, 495 (Tenn.
2017) (explaining that “trial courts are in a better position to observe the witnesses and
assess their credibility; therefore, trial courts enjoy broad discretion in formulating
parenting plans”).

       A trial court’s decision will be affirmed under the abuse of discretion standard
‘“so long as reasonable minds can disagree as to propriety of the decision made.”’
Eldridge, 42 S.W.3d at 85 (quoting State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000)).
This standard of review does not permit an appellate court to substitute its judgment for
that of the trial court when no error is apparent in the trial court’s ruling. C.W.H., 538
S.W.3d at 495; Eldridge, 42 S.W.3d. at 85, 88. As the Eldridge Court explained,

       The abuse of discretion standard recognizes that the trial court is in a better
       position than the appellate court to make certain judgments. The abuse of
       discretion standard does not require a trial court to render an ideal order,
       even in matters involving visitation, to withstand reversal. Reversal should
       not result simply because the appellate court found a “better” resolution.

Eldridge, 42 S.W.3d at 88; see also C.W.H., 538 S.W.3d at 495.

       B. Comparative Fitness Analysis

        When a trial court is faced with designating a primary residential parent during
divorce proceedings, it must consider the child’s best interest first and foremost. Tenn.
Code Ann. § 36-6-106(a); Armbrister, 414 S.W.3d at 693. The court’s designation is
‘“not intended to reward or to punish parents, and, in fact, the interests of the parents are
secondary to those of the children.”’ Burden v. Burden, 250 S.W.3d 899, 909 (Tenn. Ct.
App. 2007) (quoting Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App.
1997)). The Legislature recognizes the “detrimental effect” divorce has on children and
that, following a divorce, neither parent will have the same access to the children as he or
she would have if the family had been able to remain intact. Tenn. Code Ann. § 36-6-
401(a); see generally Armbrister, 414 S.W.3d at 693-96. To determine 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.” Tenn. Code Ann. § 36-6-106(a). The court is to
consider “all relevant factors” set forth in the statute to the extent they are applicable. Id.
Not all factors are relevant in every case, and there may be factors in some cases that are
not included in the statute. Rayburn v. Rayburn, No. 01A01-9710-CH-00548, 1998 WL
721088, at *2 (Tenn. Ct. App. Oct. 16, 1998).

       Once the trial court determines which parent should be designated the primary
residential parent, the court is directed to establish a permanent parenting plan that, inter

                                             -7-
alia, includes a residential schedule and details the authority and responsibilities of each
parent with respect to the child. Tenn. Code Ann. § 36-6-404(a), (b). In determining the
child’s residential schedule, the court is to consider the factors set out Tenn. Code Ann.
§ 36-6-106(a). Id. at § 36-6-404(b); see generally Armbrister, 414 S.W.3d at 693-97.

      The trial court in this case considered each of the statutory factors set forth in
Tenn. Code Ann. § 36-6-106(a) and found that some factors favored Mother, others
favored Father, some did not favor either parent, and some were not relevant:

              (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;

              The Court finds that each of the parents has a strong loving
       relationship with the parties’ minor son. From the birth of the child until the
       separation of the parties in March, 2015, [Mother] has been the primary
       caregiver and by all accounts has done so successfully. However, [Father]
       was actively involved with the child during this time. Since June 16, 2016,
       [Father] has been the primary caregiver of the child although [Mother] has
       had frequent access to the child and has acted as a caregiver when [Father]
       was compelled to be out of town on business-related trips or was otherwise
       working. [Father] has also successfully parented the child during this
       period. Thus, each of the parties has, at various times, successfully
       performed the majority of parenting responsibilities relating to the daily
       needs of the child. However, considering that the Wife was the primary
       caregiver of the child from his birth until approximately eight years of age,
       this consideration favors [Mother].

               (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, 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;



                                            -8-
              The Court finds that each parent’s past behavior evidences that each
       party has the potential for the future performance of parenting
       responsibilities. Further, the Court finds that each of the parties will
       encourage a close and continuing parent-child relationship between the
       child and the other parent. The Court, however, has serious concerns
       regarding [Mother]’s judgment by moving into an apartment with her child
       and her male companion and subsequent paramour. Further, the Court was
       extremely disturbed by [Mother]’s harassing behavior toward [Father]
       when the Court placed possession of the child with him during the
       pendency of this action.[2] Finally, the Court is concerned by the Mother’s
       behavior in exercising her right of first refusal when temporary possession
       of the child was placed with [Father]. In some of those instances, [Mother]
       refused to return the child as agreed or, once in possession of the child,
       attempted to modify the parties’ agreement as to when the child would be
       returned. As noted, the Court also finds [Mother]’s refusal to commit to
       firm return dates to exchange the child is problematic. The Court finds this
       consideration to favor [Father].

             (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;

               This consideration is not applicable.

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

              The Court finds that each of the parties is disposed to providing the
       minor child with adequate necessary care. However, the Court finds that
       [Father] is the higher earning parent and is better equipped to provide for
       the child. The Court finds this consideration to slightly favor [Father].

              (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;

              The Court finds that each of the parties has acted as the primary
       caregiver for the child and has done so successfully. The Mother has done

2
 Evidence was introduced that Mother began sending Father harassing text messages once the trial court
placed temporary custody of Noah with Father in the summer of 2016 and that Mother refused at times to
allow Father to speak with Noah when the child was with her. Mother acknowledged at trial that her
harassing behavior had the effect of interfering with Father’s parenting time with Noah.
                                                -9-
       so for a longer period of time than the Father. The evidence before the
       Court establishes that currently, the parties are generally cooperating and
       working well with one another. The Court finds this consideration slightly
       favors [Mother].

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

              The Court finds that each of the parties has great love and affection
       for and emotional ties with the minor child. At one point during the
       pendency of this action, the Court finds the minor child was distraught as a
       result of his separation from his mother and the ongoing difficulties the
       parties were experiencing over the issue of custody. The Court finds that
       some of the child’s issues with separation from [Mother] were generated by
       [Mother]’s emotional behavior when returning the child to [Father].[3] The
       child is currently in counseling in which both parents participate and his
       circumstances have improved. The Court finds this currently to be a neutral
       consideration.

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

              Except as set forth above, the Court has heard no evidence of any
       emotional needs or the developmental level of the child. The Court finds
       this consideration to be neutral.

               (8) The moral, physical, mental and emotional fitness of each parent
       as it relates to their ability to parent the child;

               The Court finds that neither party has any physical issue that
       interferes with their parenting the child. The Court does question
       [Mother]’s moral and emotional fitness to parent the child. The Court finds
       [Mother] has used exceedingly poor judgment in her decision to cohabitate
       with her male companion in the presence of the parties’ child. The Court
       finds [Mother] misled [Father] as to the true nature of her relationship with
       her male companion and engaged in a romantic relationship with this
       individual in the presence of the child. During this time, she not only
       cohabitated with him in the child’s presence but openly went on trips with
       him and, on occasion, took the child along. Further, this Court has concerns
       over [Mother]’s emotional fitness in light of her harassing and obsessive

3
Father testified that Mother would cry and hold onto Noah when the parties met to transfer Noah from
Mother to Father.


                                              - 10 -
        behavior during the pendency of this action. The evidence before the Court
        currently reflects that this behavior has ceased, and the parties are generally
        cooperating and co-parenting the child. However, [Mother]’s propensity to
        attempt to adjust the parties’ agreement on the return time of the child when
        exercising her right of first refusal, as well as her emotional and prolonged
        good-byes when returning the child to [Father] cause this Court serious,
        concerns.[4] Considering all the foregoing, the Court finds this consideration
        favors [Father].

                (9) The child’s interaction and inter-relationships 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;

               The Court has heard nothing of the relationship between the minor
        child and the parties’ relatives or the child’s extracurricular activities. The
        child has no siblings. Each of the parties has, at some point, taken the child
        to their place of employment. While there was some testimony that the
        child enjoyed visiting the parents’ place of employment, generally the
        Court finds this is not in the child’s best interest. The Court notes that the
        child currently attends the Davidson County public school for which
        [Father] is zoned. [Mother] lives in Wilson County and by placing the child
        in the custody of [Mother], the Child would be forced to change schools,
        leaving classmates and current relationships behind. The Court finds this
        consideration to slightly favor [Father].

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

               The Court finds that in each instance when the child was previously
        in the possession of [Mother] and currently while the child has been in the
        possession of [Father], the child has been well cared for by each of the
        parents. The child’s living circumstance, while living with [Mother], and
        her male companion, was inappropriate. Currently, while the child has been
        in [Father]’s possession, [Father] has been compelled to travel or work in
        town and [Mother] has made herself available to act as a caregiver. The
        Court finds the parties are currently, for the most part, working well

4
 Father testified that when Mother exercised her right of first refusal during his parenting time, she often
made it difficult for Father to have Noah returned to him, telling Father that Noah was busy doing some
activity or that Father should let Noah stay with her because Noah was happy. Father also testified that
Mother would bring a recently-acquired dog with her and Noah to the exchanges, with the result that
Noah had to say goodbye to Mother in addition to saying goodbye to the dog, and that this process was
emotionally taxing for Noah.
                                                  - 11 -
together for the benefit of their child such that he can spend time with each
of the parents. As a result, the child is not required to spend extended time
in daycare or with babysitters. The child currently attends a Davidson
County school and were he to be placed in possession of [Mother], the child
would be compelled to change schools. The Court finds that the child’s
current living arrangements in the marital residence appear to be
satisfactory, especially in light of the parties’ cooperation. The Court finds
this continuity to be in the child’s best interest. The Court finds that this
consideration favors [Father].

       (11) Evidence of physical or emotional abuse to the child, to the
other parent or to any other person;

        The Court finds no evidence of any intentional physical abuse or
emotional abuse to either party during the marriage or during the pendency
of this divorce action except as noted herein regarding [Mother]’s excessive
texting to [Father] regarding the issue of custody and access to the minor
child which appear to have now been resolved. The Court does have
concerns that [Mother]’s prolonged and/or emotional goodbyes during
exchanges are detrimental to the minor child. The Court finds this
consideration slightly favors the Father.

       (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;

       The Court finds that the only individual who resided in or frequented
the home of either of the parties was [Mother]’s male companion. The
Court’s primary objection to [Mother]’s living arrangement with Mr.
Sterling was [Mother]’s status as a married person during the pendency of
the divorce action. The Court has subsequently found that she engaged in a
romantic relationship with Mr. Sterling in the child’s presence. The Court
has heard no evidence of any behavior by Mr. Sterling that would make it
inappropriate for him to be around the child once the parties are divorced.
The Court finds this consideration does not apply upon the entry of the
divorce decree.

       (13) The reasonable preference of the child if twelve (12) years of
age or older.

       The Court finds this consideration is not applicable as the child is
currently nine years of age and did not testify.


                                    - 12 -
           (14) Each parent’s employment schedule and the court may make
      accommodations consistent with those schedules;

             The Court finds that each of the parties has non-traditional and
      sometimes erratic schedules. More recently, during the pendency of this
      case, the parties have worked well with one another in providing care for
      the child while the other party was at work. The Court finds this
      consideration to be neutral.

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

             The Court finds that there are no other considerations other than
      those previously addressed.

        Mother complains that the court erroneously denied her request to be designated
the primary residential parent because of her infidelity, citing Nelson v. Nelson, 66
S.W.3d 896, 902 (Tenn. Ct. App. 2001), for support. Unlike Mother, however, the wife
in Nelson, readily admitted to her extramarital affair. Nelson, 66 S.W.3d at 899. This
case is more like Rayburn v. Rayburn, where the wife denied being engaged in an
extramarital affair in the face of evidence suggesting otherwise. Rayburn, 1998 WL
721088, at *1. The Rayburn court noted that a trial court may consider a parent’s
“untruthfulness under oath in determining child custody” and that ‘“[a] parent’s honesty
reflects on his or her fitness to be a good custodian.’” Id. at *3 (quoting Gaskill, 936
S.W.2d at 634). The Rayburn court continued,

      A child learns as much by example as by precept, and it is up to the parent
      to set a good example. Ms. Rayburn (now Ms. Shearon) did not set a good
      example when she began an affair with a married man, and moved out of
      the marital home, taking the three children with her, and she did not set a
      good example when she rejected her husband’s attempts at reconciliation.
      While, as this court said in Varley v. Varley, 934 S.W.2d 659, 666-7 (Tenn.
      App. 1996), “a parent’s sexual infidelity or indiscretion does not, ipso
      facto, disqualify that parent from receiving custody of his/her children,”
      such acts may be relevant to the question of character, and thus to
      comparative fitness.

Id.

       In its order designating Father as the primary residential parent, the trial court
found that Mother was not a credible witness:

      [T]he Court finds that the Wife is not a credible witness, and the Court
      discounts her testimony in its entirety. The Court finds that she has

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       shamefully lied to [Father] regarding the nature of her relationship with Mr.
       Sterling. She has induced [Father] to invite her male friend and
       subsequently her paramour into the parties’ home, even allowing him to
       live there, as Mr. Sterling began his divorce from his own wife. The Wife’s
       behavior was open and notorious, taking trips for business and pleasure
       with her male companion and subsequent paramour while [Father] stayed at
       home, working to pay her bills from her prior marriage and caring for the
       parties’ minor child. She openly moved into an apartment and lived with
       Mr. Sterling with the parties’ child. She lied to her naïve Husband both
       before and during this litigation and has repeatedly lied in court and in
       pleadings to this Court. She has alleged that her Husband was guilty of
       inappropriate marital conduct and suggested inappropriate relationships
       with his female friends without any credible evidence of such behavior. The
       Court finds [Father] guilty only of incredible naiveté and denial while he
       tried to ignore the obvious nature of his Wife’s relationship with her male
       friend.

       In addition to finding Mother was not credible, the trial court questioned Mother’s
judgment and her moral and emotional fitness to act as the primary residential parent
based on evidence that Mother moved in with her paramour while she was still married
and her decision to expose Noah to this other relationship. This finding by the court is
supported by a text message from Mother to Father dated July 2, 2016, which was
introduced into evidence during the trial. Mother was upset with Father during this
period because the court had entered a restraining order precluding her from having Noah
in the presence of Mr. Sterling. Mother told Father in this text that she had built a home
for Noah where he was safe and where he felt loved by both Mother and Mr. Sterling.

       Thus, contrary to Mother’s argument, the court did not base its decision to
designate Father as the primary residential parent solely on the fact that Mother had
engaged in an extramarital affair. Rather, Mother’s decision to expose Noah to her
relationship with Mr. Sterling while she was still married to Father coupled with her
dishonesty throughout the litigation, right up until the end of the trial, tipped the scales
against Mother. The record shows that Father is a loving and devoted father to Noah and
that he encourages Noah’s relationship with Mother. Mother did not introduce any
evidence suggesting any deficiencies in Father’s parenting of Noah.

        Our review of the record reveals that the evidence does not preponderate against
the trial court’s findings of fact with regard to its comparative fitness analysis. Mother
has failed to show that the trial court abused its discretion in designating Father as the
primary residential parent or in awarding the parties the residential parenting time set
forth in the permanent parenting plan attached to the final decree of divorce. Mother
requests that we tweak the residential parenting schedule to give her more time with
Noah, but our Supreme Court has consistently written that determining the details of

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parenting plans is a task for the trial judge absent an abuse of discretion. See C.W.H., 538
S.W.3d at 495; Armbrister, 414 S.W.3d at 693; Eldridge, 42 S.W.3d at 88. We find no
abuse of discretion, and accordingly, we affirm the trial court’s judgment designating
Father as the primary residential parent and awarding Mother 146 days of parenting time
per year.

       C. Attorney’s Fees

       Father asserts that Mother’s appeal was frivolous, and he seeks an award of the
attorney’s fees he incurred on appeal as damages. Tennessee Code Annotated section 27-
1-122 addresses frivolous appeals and provides:

       When it appears to any reviewing court that the appeal from any court of
       record was frivolous or taken solely for delay, the court may, either upon
       motion of a party or of its own motion, award just damages against the
       appellant, which may include, but need not be limited to, costs, interest on
       the judgment, and expenses incurred by the appellee as a result of the
       appeal.

        “An appeal is frivolous when it has ‘no reasonable chance of success’ or is ‘so
utterly devoid of merit as to justify the imposition of a penalty.’” Chiozza v. Chiozza, 315
S.W.3d 482, 493 (Tenn. Ct. App. 2009) (quoting Whalum v. Marshall, 224 S.W.3d 169,
181 (Tenn. Ct. App. 2006)). A party’s failure to provide an adequate record to the
appellate court may be a basis for deeming an appeal frivolous. Young v. Barrow, 130
S.W.3d 59, 67 (Tenn. Ct. App. 2003) (citations omitted). In addition, a party’s failure to
point to any evidence or rule of law entitling him or her to relief may be a basis for a
court to conclude an appeal is frivolous. Jackson v. Aldridge, 6 S.W.3d 501, 504 (Tenn.
Ct. App. 1999) (citing Wells v. Sentry Ins. Co., 834 S.W.2d 935, 938-39 (Tenn. 1992)).

       Appellate courts have sole discretion to decide whether to award damages for the
filing of a frivolous appeal, and we exercise that discretion sparingly to avoid
discouraging legitimate appeals. Chiozza, 315 S.W.3d at 493. We decline to exercise
our discretion in this case to award Father attorney’s fees under the statute.

                                     III. CONCLUSION

      The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against the appellant, Kristen Paulette Stokes, for which execution
may issue if necessary.


                                                    ________________________________
                                                    ANDY D. BENNETT, JUDGE

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