                                                                                         05/21/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              February 21, 2019 Session

 JASMINE DESIREE WIGHTMAN v. JOSHUA CHARLES WIGHTMAN

               Appeal from the Probate Court for Cumberland County
                 No. 2018-PF-6114 Larry Michael Warner, Judge
                      ___________________________________

                           No. E2018-01663-COA-R3-CV
                       ___________________________________


In this appeal, the father challenges the trial court’s determination of the residential
parenting schedule as it relates to visitation during the school term. Upon our review, we
find that the trial court did not abuse its discretion.

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

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, Jr., J. and D. MICHAEL SWINEY, C.J., joined.

Jeffrey A. Vires, Crossville, Tennessee, for the appellant, Joshua Charles Wightman.

Henry D. Fincher, Cookeville, Tennessee, for the appellee, Jasmine Desiree Wightman.


                                       OPINION

                                  I. BACKGROUND

       Jasmine Desiree (Wightman) Taylor (“Mother”) and Joshua Charles Wightman
(“Father”) were married on January 16, 2011. Mother, 28 years old at the time of trial,
was attending school to obtain training as a radiological technician. Father, 35 years old,
worked as a corrections officer at the Bledsoe County Correctional Facility. Father
stipulated that he earned $4,200 a month in his job. Despite attending classes, Mother
was able to earn $1,440 a month. Two children were born of the marriage, Joshua
(11/22/2010) and Brady (7/9/2014).

       Mother filed a complaint for divorce on March 12, 2018. The parties agreed to the
provisions of an agreed temporary order entered on June 8, 2018, which provided in
relevant part as follows:

       a. During the summer, Father would have visitation with the Children
       during his days off from his job as a Corrections Officer;

       b. During the school year, Father would have visitation every other
       weekend from Friday 5:00 pm until Sunday 5:00 pm and other times as the
       parties could agree;

       c. Father’s child support arrearages would be reserved to the final hearing.

On July 10, 2018, the parties filed a Joint Stipulation and Statement in Domestic
Relations Case:

       a. Summer visitation will be week on, week off divided equally between
       the parties;

       b. Father has an admitted child support arrearage of $4,770, and will retire
       it with payments of $100 per month;

       c. Father has the Children on their Spring Break; Mother has them on their
       Fall Break;

       d. The parties have joint decision making over the Children’s education,
       health, religious and extracurricular decisions.

        During the proceedings, Father admitted that Mother was a good parent. He
observed that she was the one who primarily bathed the Children, cooked for them, took
them to doctors, and addressed school matters. Father claimed to be attentive to the
Children’s education, observing that “I just make sure they keep their grades up, they’re
at school on time, and they don’t miss.” However, he admitted: “I try to just have fun
with them when I have them.” He acknowledged that his work schedule was 6:00 a.m. to
2:00 p.m., five days a week, with holidays and weekends off. Despite Father contending
that his boss was “real flexible,” that he could come in late or work nights in order to get
the Children to school on time, and that his father could help him with taking the
Children to school and could “be there whenever he needs to be,” he offered no proof to
corroborate these claims.

        Upon the court asking Father why he had not paid his child support, Father first
blamed his lawyer. He then observed: “I’ve just been paying our household bills.” The
trial court accepted this explanation. On cross examination, however, Father admitted
that the expenses he had paid were not for the residence where Mother and the Children
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resided and, therefore, did not support the Children’s needs. He acknowledged that
Mother had paid for the Children’s food and clothing over the six months’ separation on
one-third earnings of what Father earned. Father contended that he had bought clothes
for the Children to use at his parents’ house, where he was living. According to Father,
he planned to get his own place once he could “budget that out.”

       Father informed the court that he would work with Mother and communicate with
her regarding co-parenting issues. He claimed that visitation had gone smoothly. On
cross examination, however, Father admitted that he had given Mother short notice of his
schedule and threatened to throw her in jail if she did not deliver the Children the next
morning to him. He acknowledged that the parties had engaged in a dispute just the
weekend before the trial over visitation. Father noted on cross examination that he had
agreed in the Agreed Order to permit the Children to stay with the Mother every week
during the school year until he saw the child support calculations.

        The trial court made both oral and written findings on the issue of school year
visitation:

             Regarding the joint equal custody, that will be denied. The
             child[ren] need[ ] to know where home is. If we shift them
             back and forth every week—I’ve talked to kids, hundreds
             over the last 12 years [that I have been on the bench] in this
             situation, and they don’t know where home is. And,
             especially at the age of these children.

             Standard visitation . . . . Split holidays, accordingly, and
             somebody’s going to have to move Christmas, somebody’s
             going to have to move Thanksgiving, that’s just the way it
             works in these deals.

             If the parties cannot agree otherwise, he gets spring break, she
             gets fall. If they can’t agree otherwise. Okay. And I
             encourage you to deviate from this. This is just as minimum.
             If he’s got something special coming up, let him have them.
             I’m sure he’s a good dad. I’m sure you’re a good mother. I
             have no doubt about that, neither one of you.

       The final decree added to these findings, approved the Joint Stipulation, and found
in relevant part as follows:

             The Court affirmatively finds that the best interest of the
             minor children, after considering all relevant factors under
             T.C.A. § 36-6-101, and based upon the Husband’s testimony,
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             that the Wife has been the primary caregiver of the minor
             children and should continue to be throughout the school year.
             Thus, during the school year, the Husband shall have visitation
             pursuant to the Court’s Standing Visitation Order [which is
             every other weekend and as agreed].”

             The Permanent Parenting Plan entered into by and between the
             parties is in all respects ratified and approved by this Court
             and is made a part of this Decree by reference as if fully set
             forth herein.

(numbering omitted). Father filed a timely notice of appeal.


                                       II. ISSUES

      The issues raised in this appeal are restated as follows:

             A. Did the trial court abuse its discretion in this residential
             scheduling matter.

             B. Should Father pay Mother’s attorneys’ fees for this
             frivolous appeal.


                            III. STANDARD OF REVIEW

       Our review of the trial court’s findings of fact is de novo with a presumption that
the findings are correct unless the evidence preponderates otherwise. Tenn. R. App. P.
13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). We review a trial
court’s conclusions of law de novo, according them no presumption of correctness.
Armbrister, 414 S.W.3d at 692.

       A trial court’s decision regarding parenting arrangements is reviewed under the
deferential “abuse of discretion” standard. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.
2001); Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988). See also Woolbright v.
Woolbright, No. M2016-02420-COA-R3-CV, 2018 WL 934815, at *4 (Tenn. Ct. App.
2018); Hoover v. Hoover, No. E2014-01629-COA-R3-CV, 2015 WL 4737413, at *4
(Tenn. Ct. App. 2015); Roland v. Roland, No. M2014-02032-COA-R3-CV, 2015 WL
5719833, at *6 (Tenn. Ct. App. 2015); Aragon v. Aragon, No. M2013-01962-COA-R3-
CV, 2014 WL 1607350, at *4 (Tenn. Ct. App. Apr. 21, 2014).

      When applying the “abuse of discretion” standard, the Tennessee Supreme Court
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requires the court to apply a presumption that the decision is correct, and then view the
decision in the light that most favors affirmance:

              [W]hen reviewing a trial court’s exercise of discretion, the
              appellate court is to “presume that the trial court’s decision is
              correct and review the evidence in a light most favorable to
              upholding the decision.” White v. Beeks, 469 S.W.3d 517,
              2015 WL 2375458, at *7 (Tenn. May 18, 2015)(citing
              Lovlace v. Copley, 418 S.W.3d 1, 16-17 (Tenn. 2013)(itself
              quoting Gonsewski [v. Gonsewski], 350 S.W.3d [99,] 105
              [(Tenn. 2011))].

Roland, 2015 WL 5719833 at *6.

      Trial courts have “broad discretion” when making custody and visitation
determinations. Eldridge, 42 S.W.3d at 85. Our Supreme Court has explained:

              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 hope 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).

Armbrister, 414 S.W.3d at 692-93. As long as the court applies the appropriate law and
reaches a reasonable result on the facts presented at trial, the trial court’s decision is to be
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affirmed on appeal. As stated recently in Woolbright v. Woolbright,

             Thus, we will not find that a trial court abused its discretion in
             establishing a parenting plan unless 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.” Id. (quoting Eldridge, 42
             S.W.3d at 88).

2018 WL 934814, at *4.

                                   IV. DISCUSSION

                                            A.

       When making a determination regarding a residential parenting schedule, the court
must base its decision on the best interest of the Children. Tenn. Code Ann. § 36-6-
106(a). Courts are required to consider each of the factors enumerated in Tennessee
Code Annotated section 36-6-106(a), but they are not required to list each factor and
explain how each factor impacts its ultimate determination. Murray v. Murray, No.
M2009-01972-COA-R3-CV, M2009-01576-COA-R3-CV, 2010 WL 3852218, at *8
(Tenn. Ct. App. Sept. 28, 2010).

      The factors listed in Tennessee Code Annotated section 36-6-106 provide 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, the determination shall
             be made on the basis of the best interest of the child. In
             taking into account the child’s best interest, the court shall
             order a custody arrangement that permits both parents to
             enjoy the maximum participation possible in the life of the
             child consistent with the factors set out in this subsection (a),
             the location of the residences of the parents, the child’s need
             for stability and all other relevant factors. The court shall
             consider all relevant factors, including the following, where
             applicable:

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

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

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

(5) The degree to which a parent has been the primary
caregiver, defined as the parent who has taken the greater
responsibility for performing parental responsibilities;

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

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

(8) The moral, physical, mental and emotional fitness of each
parent as it relates to their ability to parent the child. The
court may order an examination of a party under Rule 35 of
the Tennessee Rules of Civil Procedure and, if necessary for
the conduct of the proceedings, order the disclosure of
confidential mental health information of a party under § 33-
3-105(3). The court order required by § 33-3-105(3) must
contain a qualified protective order that limits the
dissemination of confidential protected mental health
                              -7-
             information to the purpose of the litigation pending before the
             court and provides for the return or destruction of the
             confidential protected mental health information at the
             conclusion of the proceedings;

             (9) The child’s interaction and interrelationships with
             siblings, other relatives and step-relatives, and mentors, as
             well as the child’s involvement with the child’s physical
             surroundings, school, or other significant activities;

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

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

             (12) The character and behavior of any other person who
             resides in or frequents the home of a parent and such person’s
             interaction with the child;

              (13) The reasonable preference of the child if twelve (12)
             years of age or older. The court may hear the preference of a
             younger child upon request. The preference of older children
             should normally be given greater weight than those of
             younger children;

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

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

Tenn. Code Ann. § 36-6-106.

       Upon considering the testimony presented, the trial court found that both parents
loved the Children and were good parents. The proof, however, showed that Mother had
performed the majority of parenting responsibilities relating to the daily needs of the
Children, including bathing them, feeding them, taking them to school and helping with
their homework. The court found that the Children had been with Mother since birth.
The court further determined that Father’s work schedule was not convenient for the
Children’s school schedule, as he works 6 a.m. to 2 p.m. out of the county. Despite
                                         -8-
Father claiming that his boss was flexible, he offered no corroboration of this alleged
fact. He did not explain with any precision how his family would help, and he did not
have them testify that they would. Thus, the court found that Father’s requested
residential schedule was not in the Children’s best interest. The court referenced several
reasons for its ruling: the Children’s need for a stable residence, their need to not be
shuffled around, and the need for them to be settled and focused on school.

       In their Agreed Order, the parties adopted the same schedule as the one ultimately
ordered by the trial court. It expressly covered school year visitation. By so agreeing,
Father indicated that he believed these provisions to be in the Children’s best interest. He
admitted that he only decided to fight for school-year 50/50 custody upon learning that he
would have to pay more in child support.

        The trial court heard and considered all the proof presented by the parties. Father
has presented no proof that would justify a finding that the trial court abused its
discretion in devising a residential parenting schedule. We conclude that the result the
trial court reached is not outside the spectrum of rulings that reasonably results from
applying the correct legal standards to the evidence.


                                             B.

       Tennessee Code Annotated section 27-1-122 reads in full as follows:

              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.

Tenn. Code Ann. § 27-1-122. The question of whether to find an appeal frivolous and to
award attorney’s fees rests in the appellate court’s sound discretion. Chiozza v. Chiozza,
315 S.W.3d 482, 493 (Tenn. Ct. App. 2009). This discretion is to be exercised “sparingly
so as not to discourage legitimate appeals.” Whalum v. Marshall, 224 S.W.3d 169, 181
(Tenn. Ct. App. 2006).

       Father’s appeal in this matter is clearly frivolous. He has offered no reasonable
basis for us to reverse the trial court’s decision under the deferential “abuse of discretion”
standard.


                                            -9-
                                 V. CONCLUSION

      The judgment of the trial court is affirmed, and the case is remanded for the
determination of Mother’s attorney’s fees pursuant to Tennessee Code Annotated section
27-1-122. Costs of the appeal are taxed to the appellant, Joshua Charles Wightman.


                                                 _________________________________
                                                 JOHN W. MCCLARTY, JUDGE




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