                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE

                     DEBORAH ANN HANSEN v. OLE HANSEN

                  Direct Appeal from the Circuit Court for Hamilton County
                       No. 97DR2456      Jacqueline E. Schulten, Judge



                    No. E1999-02666-COA-R3-CV - Decided April 26, 2000


This is a divorce case. The trial court entered a judgment1 establishing a residential schedule for the
parties’ minor child; designating Deborah Ann Hansen (“Mother”) the “primary custodian” of the
child; and ordering Ole Hansen (“Father”) to pay child support of $315 per month. Father appeals,
arguing that the trial court erred in refusing to alternate the designation of primary residential parent
between the parties on an annual basis when, according to Father, the parenting plan adopted by the
trial court demonstrates that the parties are, in fact, equal custodians of the child. He also contends
that the trial court erred when it stated that the designation of one parent as the primary residential
parent is a designation “in name only.” In addition, Father contends that the trial court erred in
setting his child support obligation. We affirm.

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

SUSANO, J., delivered the opinion of the court, in which FRANKS and SWINEY , JJ., joined.

David E. Fowler, Chattanooga, Tennessee, for the appellant, Ole Hansen.

Don W. Poole, Chattanooga, Tennessee, for the appellant, Deborah Ann Hansen.


                                              OPINION




        1
        The terms of the judgment pertaining to custody and related issues are subject to the
provisions of T.C.A. § 36-6-401, et seq., (Supp. 1999). This statutory scheme addresses “a pilot
project with a different approach to dispute resolution in child custody and visitation matters.”
T.C.A. § 36-6-401(a)(2). The pilot project is being implemented in Hamilton County. See T.C.A.
§ 36-6-401(b)(7).
                                            I. Background

         Mother filed a complaint for divorce, seeking custody of the parties’ child, Lindsay Karyn
Hansen (“the child,”), who was 9-1/2 years old at the time of the hearing below. The parties
participated in mediation, but were unable to resolve all of the issues pertaining to the child’s
custody. At the outset of the court proceedings below, the parties stipulated grounds for divorce.
Mother submitted a permanent parenting plan that specified she would be the custodial parent. The
plan also contains a residential schedule providing that the child’s primary residence would be with
Mother and that the child would be with Father from 5:00 p.m. Thursday until Monday at 8:00 a.m.
every other week, Friday at 3:00 p.m. until Saturday at 8:30 a.m. on alternate weekends, two weeks
during the summer, one week at Christmas, and a division of all holidays. Father did not sign the
parenting plan. As previously indicated, the trial court adopted the parenting plan signed and filed
by Mother and incorporated it by reference into the divorce judgment. Apparently, Father did not
disagree with the allocation of the child’s time between the parents; but he strenuously argued to the
trial court, and argues now, that because the residential provisions of the parenting plan reflect a “50-
50 agreement” between the parties as to their time with the child, that the designation of custodial
parent should alternate every year between the parties. Mother disputed Father’s characterization
of the parenting plan as a “50-50 agreement.”

       After the parties rested, the trial court announced its approval of the parenting plan and its
appointment of Mother as the custodial parent. The trial court rejected Father’s proposal that the
designation of custodial parent be alternated annually, noting that the designation “is really in name
only,” which, the trial court explained as follows:

                It really means nothing more than that because [Father has] this child
                probably more, if you look at the hours of the day, it’s more, if not
                equal to, what this lady has in terms of time, in terms of real time, not
                when [the child] is in school or not when she’s off on camping trips
                or not when she’s in Scouts or whatever her activities are.

                And I’m not a firm believer because all that does is make the parents
                feel warm and fuzzy. It doesn’t do a thing for the child. She doesn’t
                care who is called the custodial parent or the primary custodian. She
                knows you’re mom and you’re dad. Isn’t that the way it ought to be?

                So I’m going to approve your agreement2 that the primary




        2
        While Father apparently agreed to some of the terms of the parenting plan, he certainly did
not agree that Mother should be designated as the sole “primary custodian” absent a change of
circumstances.

                                                  -2-
               custodian3 will be [Mother].

                                      II. Standard of Review

        A trial court has broad discretion in determining matters of custody and visitation. Parker
v. Parker, 986 S.W.2d 557, 563 (Tenn. 1999); Gaskill v. Gaskill, 936 S.W.2d 626, 631
(Tenn.Ct.App. 1996). Such determinations are factually driven and involve consideration of several
factors. Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn.Ct.App. 1997). Our review is de
novo upon the record of the proceedings below; however, the record comes to us with a presumption
of correctness that we must honor “unless the preponderance of the evidence is otherwise.” Rule
13(d), Tenn. R. App. P.; see also Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). The trial
court’s conclusions of law are reviewed de novo with no presumption of correctness. Jahn v. Jahn,
932 S.W.2d 939, 941 (Tenn.Ct.App. 1996).

                                       III. Custodial Parent

                                                 A.

        Father argues that the trial court abused its discretion in designating Mother as the primary
residential parent. He contends that the residential provisions4 of the parenting plan “reflect[]
equality” between the parents, and thus, so the argument goes, the designation of primary residential
parent should alternate between the parties on an annual basis.

       In support of his argument, Father cites the comments made by the trial court that were
quoted earlier in this opinion, in which the trial court remarked that Father has the child for more
hours of the day “in terms of real time.” Father argues in his brief as follows:

               In this case, the parties have sought for equality in the “residential
               provisions.” Even when it came to time with the child, equality of
               “real time” was achieved. One parent has more nights with the child,
               but the other actually has more “real time” with the child. Consistent
               with the legislative goals of the new law, the parties sought to foster
               the child’s relationship with each parent. [Father], by asking that the
               designation of custodial parent alternate each year, sought to further
               that equality. In denying that request, the court created the only



       3
        The relevant statutory scheme does not use the term “primary custodian.” In using this
language, the trial court apparently merged the concepts of “custodial parent,” see T.C.A. § 36-4-
402(1), and “primary residential parent,” see T.C.A. § 36-4-402(5).
       4
        “Residential provisions” include the parenting schedules, time in residence at each parent’s
house, decision-making allocation, and parenting function allocation.” T.C.A. § 36-6-402(6).

                                                -3-
                  inequality in the relationship between the parties and between the
                  parties and their child.

         We do not find error in the trial court’s refusal to alternate the designation of custodial parent
on an annual basis. Although many of the provisions of the parenting plan grant the parties “equal”
rights and responsibilities with respect to the child, the residential schedule clearly establishes
Mother as the primary residential parent, that is, the parent who has the child more than fifty percent
of the time. See T.C.A. § 36-6-402(5). The statute contemplates that the designation of “primary
residential custodian” will be based upon an analysis of the total time that the child is under the legal
care and supervision of each parent -- a concept which basically equates to the concept of residence.
We find nothing in the relevant statutory scheme to suggest that a court should base the designation
of custodial parent on an analysis of the periods when the child is awake and in the company of a
given parent -- the concept that we understand Father is suggesting when he refers to “real time”
with the child. Our interpretation is in keeping with the statutory definition of “primary residential
parent” which focuses on the concept of “with whom the child resides,” see T.C.A. § 36-6-402(5)
(emphasis added), rather than on the more narrow test of “real time” or quality time suggested by
Father. When the parenting plan is examined to determine which parent has “more than fifty
percent...of the [child’s] time,” see id., viewed in the context of the respective periods of care and
supervision, Mother clearly qualifies as the statutory “primary residential parent.” Id. Our approach
to the concept of “primary residential custodian” also recognizes that a parent’s responsibilities do
not end when a child is at school or asleep or otherwise outside the presence of that parent. Rather,
such responsibilities continue during the entire time that a child is under the general care and
supervision of a parent, regardless of what the child is doing or where he or she is doing it.

       Father claims that the parenting plan approved by the trial court grants him approximately
152 days of time with the child.5 According to our calculations, he has approximately 130 days.6


        5
        Our characterization of Father’s claim is based upon his assertion that he has 90% more time
with the child than the standard 80 days of visitation mentioned in the case of Casteel v. Casteell,
C/A No. 03A01-9703-CV-00073, 1997 WL 414401 (Tenn.Ct.App. E.S., filed July 24,
1997)(perm.app. denied March 2, 1998).
        6
            We calculate his time with the child as follows:
                                                          Weeks            Days
                 Summer                                      2             14.0
                 Christmas                                   1              7.0
                 5 p.m. Thurs.-8 a.m. Mon. (alternate weeks)
                   (3.625 days x 24.5 weeks)                                88.8
                 3 p.m. Fri.-8:30 a.m. Sat. (alternate weekends)
                   (.729 days x 24.5 weeks)                                 17.9
                 Share of holidays - 48 hrs. (est.)                          2.0
                 Father’s time with child under
                   parenting plan                                          129.7

                                                   -4-
In any event, Mother clearly has more than 50% of the child’s time. See T.C.A. § 36-6-402(5).
Thus, to the extent that the labeling of Mother as the “custodial parent” and the “primary residential
parent” creates, in Father’s words, an “inequality,” it is one that was created by the General
Assembly when it defined “primary residential parent” as the one “with whom the child resides more
than fifty percent (50%) of the time”; and when it defined “custodial parent” with reference to the
concept of “primary residential parent.” See T.C.A. § 36-6-402(1) and (5). See also T.C.A. § 36-6-
413.

        Upon reviewing the entire record, we cannot say that the trial court abused its discretion in
designating Mother as the primary residential parent and custodial parent of the child; nor do we find
error in the trial court’s decision not to alternate these designations on an annual basis. This issue
is found adverse to Father.

                                                   B.

        Father also argues that the trial court erred as a matter of law in finding the term “primary
residential parent” to be a designation “in name only” and in finding the “primary residential parent”
to be the equivalent of the “custodial parent.”

        T.C.A. § 36-6-402(5) defines “primary residential parent” as “the parent with whom the child
resides more than fifty percent (50%) of the time.” T.C.A. § 36-6-402(1) defines “custodial parent”
as follows:

                “Custodial parent” means where, in order to comply with other
                federal and state laws, it is necessary to designate one (1) parent as
                the custodial parent, the primary residential parent may be deemed to
                be the custodial parent where agreed to by the parties or ordered by
                the court; provided, that such designation does not affect the decision
                making process as delineated in the parties’ parenting plan.

        While we do not totally agree with the trial court’s characterization of the designations of
custodial parent and primary residential parent as designations “in name only,” we find no reversible
error in the court’s comments. As we have pointed out, both of these designations are specifically
defined in the applicable statutory scheme, and, hence, they have real legal meaning. See T.C.A. §
36-6-402(1) and (5). However, with respect to the designation of “custodial parent,” the trial court’s
characterization of “in name only” is correct if the trial court meant to observe that the designation
does not affect the parents’ rights and responsibilities as set forth in the parenting plan. T.C.A. § 36-
4-402(1) (“[the custodial parent] designation does not affect the decision making process as
delineated in the parties’ parenting plan.”).



24.5 weeks are the number of alternate weeks/weekends in the 49 weeks left after subtracting
Father’s time with the child in the summer and at Christmas.

                                                  -5-
        Father contends that the trial court erred in designating the primary residential parent as the
custodial parent per se. He relies upon T.C.A. § 36-6-402(1), which, in pertinent part, states that
“the primary residential parent may be deemed to be the custodial parent....” (Emphasis added.)
Father’s argument, however, overlooks the language of T.C.A. § 36-6-413, which provides as
follows:

               Solely for the purpose of all other state and federal statutes which
               require a designation or determination of custody, a parenting plan
               shall designate the parent with whom the child is scheduled to reside
               a majority of the time as the custodian of the child; provided, that this
               designation shall not affect either parent’s rights and responsibilities
               under the parenting plan. In the absence of such a designation, the
               parent with whom the child is scheduled to reside a majority of the
               time shall be deemed to be the custodian for the purposes of such
               federal and state statutes.

(Emphasis added.) The parenting plan adopted by the trial court provides that Mother is the primary
residential parent. As we have previously indicated, this designation is in keeping with the
allocation of the totality of the child’s time. Under T.C.A. § 36-6-402(1), the trial court was
authorized to designate the primary residential parent as the custodial parent. As to “all other state
and federal statutes,” see T.C.A. § 36-6-413, the designation was mandatory, as shown by the use
of the word “shall” in the statute. Therefore, whether the trial court made the designation under
T.C.A. § 36-6-402(1) or under T.C.A. § 36-6-413 or under both, we find no error in the trial court’s
action. This issue is also found adverse to Father.

                                         IV. Child Support

       Father next argues that the trial court erred in setting child support at $315 per month.

        The parties stipulated at trial that Father had a monthly gross income of $2,375. According
to the Child Support Guidelines (“Guidelines”), the monthly support obligation based upon this level
of income is approximately $400 per month. See Tenn. Comp. R. & Regs., Ch. 1240-2-4-.03 and
schedule dated February 9, 1999, accompanying the Guidelines. The trial court reduced the
obligation to $315 per month, for the stated reason that the child will be spending a greater than
normal amount of time with Father.

       Father argues that the reduction is inadequate because, so the argument goes, he spends 90%
more time with the child than contemplated by the Guidelines.7 He further argues that the manner
in which the trial court calculated the reduction is flawed because in cases where the child spends



       7
         As indicated earlier in this opinion, we disagree with Father’s computation of his time with
the child.

                                                 -6-
nearly equal time with each parent, the award of support creates a windfall for the custodial parent.


        The Guidelines are based upon an assumption that the child support obligor has visitation
with the child every other weekend, two weeks during the summer, and two weeks during holidays.
Jones v. Jones, 930 S.W.2d 541, 543 n.4 (Tenn. 1996). In cases where visitation is more equal,
courts must make a case-by-case determination of the appropriate amount of support. Tenn. Comp.
R. & Regs., Ch. 1240-2-4-.02(6); see also Jones, 930 S.W.2d at 545 (holding downward deviation
appropriate where obligor spends more time with child than assumed by the Guidelines). In
calculating the appropriate amount by which to reduce Father’s obligation, the trial court apparently
applied the method set forth in Casteel v. Casteel, C/A No. 03A01-9703-CV-00073, 1997 WL
414401 (Tenn.Ct.App. E.S., filed July 24, 1997)(perm.app. denied March 2, 1998).8

        We do not agree with Father’s assertion that his child support is, in some way, contrary to
the Guidelines. Rather, we find that the amount of support set by the trial court, and its rationale for
doing so, are consistent with the Guidelines and take into account Father’s more-than-usual time
with the child. The Guidelines-directed support for one child, to be paid by an obligor earning a
gross salary of $2,375 per month, is approximately $400 per month.9 To account for Father’s time
with the child, the court below reduced his child support obligation to $315 per month. We find no
error in the amount of the trial court’s reduction.

                                           V. Conclusion

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




       8
         At the hearing, Mother’s counsel applied the forumula found in the Casteel case to arrive
at a figure of $316. Although the trial court did not explicitly adopt this method, we infer that the
trial court applied the rationale of Casteel because the trial court’s award of $315 is close to the
amount calculated by Mother’s counsel at the hearing.
       9
       See schedule dated February 9, 1999, that accompanied the Guidelines promulgated by the
Department of Human Services: $400 is to $2,375 as $396 is to $2,350.

                                                  -7-
