                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE

   JEREMY FOSTER WILSON v. JENNIFER ELAINE PARIS WILSON
                         (LADD)

             Direct Appeal from the General Sessions Court for Warren County
                             No. 6391   Larry G. Ross, Judge



                   No. M1999-01274-COA-R3-CV - Decided June 20, 2000


A divorce decree granted both parents joint custody of their young child. When the child reached
school age, the mother and father were living in different towns, and they both filed petitions to be
granted primary custody. The trial court granted primary custody to the father, with reasonable
visitation for the mother. We affirm.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court
                                 Affirmed and Remanded

CANTRELL , P.J., M.S., delivered the opinion of the court, in which CAIN and COTTRELL , JJ. joined.

Timothy S. Priest, Winchester, Tennessee, for the appellant, Jennifer Elaine Paris Wilson (Ladd).

Susan N. Marttala, Winchester, Tennessee, for the appellee, Jeremy Foster Wilson.

                                            OPINION

                                                 I.

        Justin Foster Wilson was born on September 14, 1994. His parents, Jeremy and Jennifer
Wilson divorced fifteen months later. The divorce decree, filed on December 11, 1995 in the
General Sessions Court for Warren County, granted the divorce to Jeremy Wilson on the ground of
inappropriate marital conduct. Both parties were awarded joint custody of Justin, with physical
custody to alternate on a weekly basis. No child support was ordered. The joint custody
arrangement worked fairly well, although for most of the time, the parties found it advantageous to
alternate custody every two or three days rather than weekly.

       After the divorce, Jeremy Wilson continued to live in the log home he and his father had built
on land adjoining his parents’ property in McMinnville. Jennifer moved into an apartment in
McMinnville, and then purchased a house near her parents’ home in the Centertown community in
Warren County. She subsequently sold the Centertown house and moved to Tullahoma. On
September 12, 1998, Jennifer married Elliott Ladd. Mr. Ladd’s 16-year-old son and 8-year-old
daughter from a previous marriage lived with him in a 4 bedroom house in Tullahoma. Jennifer
moved into the house at the time of her marriage.

       As Justin approached the age of five, the question arose as to whether he should go to school
in McMinnville or Tullahoma. On March 3, 1999, Jennifer Ladd filed a petition to modify custody,
in which she asserted that it was in Justin’s manifest best interest that she be granted absolute
custody and that Justin be enrolled in a school near her. On April 5, 1999, Jeremy Wilson filed an
answer and counter-petition for custody.

        After a full evidentiary hearing on August 11, 1999, the trial court granted custody to the
father, subject to reasonable visitation by the mother. The mother was also ordered to pay child
support. This appeal followed.

                                                   II.

        The sole issue raised on appeal is whether the trial court erred in granting primary custody
of Justin to his father. The trial judge admitted that it was difficult to decide between the competing
claims of the parents, but he ultimately found that it was in the child’s best interest to be placed in
his father’s custody. Our review of this finding of fact is de novo upon the record of the trial court,
accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise.
Rule 13(d), Tenn. R. App. P.

        Fortunately for our review, there is very little dispute as to the pertinent facts, but only as to
the relative weight those facts were entitled to in the court’s best interest analysis. Tenn. Code. Ann.
§ 36-6-106 sets out the factors for the court to consider in determining the best interest of a child in
matters of custody:

                 (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;



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                (8) Evidence of physical or emotional abuse to the child, to the other parent
       or to any other person;
                (9) The character and behavior of any other person who resides in or
       frequents the home of a parent and such person's interactions with the child.
                (10) Each parent's past and potential for future performance of parenting
       responsibilities, including the willingness and ability 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.

        The trial court applied the relevant statutory factors in a conscientious manner, and concluded
that some of them favored Mr. Wilson, some favored Mrs. Ladd, and some were equally favorable
to both parents. The court found, for example, that the ties of love and affection between mother and
child were equal in strength to those between father and child. There can be no doubt that both
mother and father are fit parents, and that they both continue to play an important role in Justin’s
upbringing.

        The mother argues that she has been the primary caregiver, because she was the one who
involved Justin in social and church-related activities, and the one who took Justin to the doctor
when he was sick. The trial judge noted that the disposition of both parents to provide the child with
food, clothing and medical care was about equal, but conceded that if he had to designate the one
who had been the primary caregiver, she would get the nod, because “if nothing else, just for the
times that she took the child to the doctor. Or maybe, that is just a woman thing as opposed to a man
thing. Maybe the women just do that sort of thing.”

       The appellant argues that this remark amounts to reversible error by the trial court, because
it shows that the judge did not give proper weight to the second factor provided by the statutory
scheme for determining child custody. While the judge perhaps made an unfortunate choice of
words, we do not believe that it amounts to reversible error. Insofar as factor two favored one of the
parents over the other, he found that it favored the appellant, but he also found that other factors
weighed heavily in favor of the father.

         The trial court determined that Justin would be better off in his father’s custody than his
mother’s because of the greater continuity and stability offered by Mr. Wilson. The proof showed
that Mr. Wilson has worked for the City of McMinnville for at least five years, and that he continues
to live in the same home that the parties shared when Justin was born.

        Jeremy Wilson’s parents live next door, and his mother testified that she is willing and able
to help him with Justin. The child’s maternal grandmother and great-grandparents and other
relatives also live in the McMinnville area. Justin’s maternal grandmother sees him at least once a
week by agreement with the paternal grandmother and with her former son-in-law.

         Mrs. Ladd notes that Mr. Wilson’s work hours are 7:30 a.m. to 3:30 p.m. and that in order
to be at work on time, he will have to drop Justin off at school more than half an hour before the bell


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rings (there is a program at the school for children who arrive early). The maternal grandmother will
have to pick Justin up at school when it lets out at 2:30, and keep him in her home until Mr. Wilson
gets home from work.

        The appellant states that Mr. Ladd earns a sufficient income to enable her to stay home and
take care of Justin full-time, and also that he is capable and willing to assist her in raising Justin.
She thus argues that she can be a full-time parent to Justin, while Mr. Wilson cannot. She also
claims that Justin has become very attached to his stepbrother and stepsister.

       The record does not contradict the appellant’s assertions, but it includes facts that add an
element of uncertainty to her situation. She and Mr. Ladd had both previously worked at the
Bridgestone plant near McMinnville. They had both suffered injuries on the job, and are currently
involved in workers compensation lawsuits. The appellant has had to undergo carpal tunnel surgery
on both hands as well as shoulder surgery.

       Mr. Ladd suffered a back injury, and his doctors placed lifting restrictions on him that made
it impossible for him to resume work at Bridgestone. He subsequently began an asphalt sealing
business, with all labor being done by himself and two employees. As we indicated above, the
business has been successful enough to enable the appellant to stay home and raise the children. But
Mr. Ladd had only been in business for a short time when the hearing was conducted, and the long-
term prospects of the business, and thus of the appellant’s plan to be a stay-at-home mom, remain
uncertain.

       Further, while we have no reason to doubt the strength of their bond, we note that appellant
had been married to Mr. Ladd for less than a year at the time of the custody hearing, and that Mr.
Ladd has been married three times previously. It is significant that no family members of Mr. or
Mrs. Ladd appear to reside in Tullahoma, so if problems develop for either of them, assistance might
be hard to find.

        Of course, every situation carries with it some degree of risk. For example, Mr. Wilson’s
mother is diabetic, so his reliance upon her for Justin’s after-school care might be affected by a
worsening of her condition. On balance, however, we cannot say that the evidence preponderates
against the trial court’s finding that Mr. Wilson can offer more continuity and stability to his son than
can Mrs. Ladd, and therefore that it is in Justin’s best interest that custody be placed in his father.

                                                  III.

       The judgment of the trial court is affirmed. Remand this cause to the General Sessions Court
of Warren County for further proceedings consistent with this opinion. Tax the costs on appeal to
the appellant, Jennifer Elaine Wilson (Ladd).




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