                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                          June 2000 Session

     JOANNA MAY BUTTON BAGGETT v. DENNIS KEITH BAGGETT

                    An Appeal from the Chancery Court for Houston County
                             No. 5-83 Allen W. Wallace, Judge



                     No. M1999-00742-COA-R3-CV - Filed August 25, 2000


This is a divorce case involving child custody. After awarding the mother temporary custody of the
parties’ children during the pendency of the case, the trial court granted the father sole custody and
granted the mother visitation. The mother appealed the custody award. We affirm.

                  Tenn.R.App.3; Judgment of the Chancery Court is Affirmed.

HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J.,
W.S., and DAVID R. FARMER , joined.

Troy L. Brooks, Clarksville, Tennessee, for the appellant, Joanna May Button Baggett.

James Phillips Bradley, Waverly, Tennessee, for the appellee, Dennis Keith Baggett

                                    MEMORANDUM OPINION1

        On February 12, 1998, Petitioner/Appellant Joanna May Button Baggett (“Mother”) filed a
complaint for divorce from Respondent/Appellee Dennis Keith Baggett (“Father”). On April 20,1998,
Father filed an answer and counter-complaint for divorce. Both Mother and Father sought sole custody
of the parties’ two minor children, Jennifer Rose Baggett (“Jennifer”), born May, 16, 1992, and Sarah
May Baggett (“Sarah”), born September 7, 1994.

       On May 15, 1998, the trial court held a hearing to determine which party would have temporary
custody of the children during the pendency of the case. At the hearing, Mother testified that she had
been the children’s primary caretaker since their birth. She stated that she has a job and that she was


        1
           Rule 10 (Rules of the Court of Appeals of Tennessee). (b) Memorandum Opinion. The Court,
with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the
trial court by memorandum opinion when a formal opinion would have no precedential value. When a case
is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall not be
published, and shall not be cited or relied on for any reason in a subsequent unrelated case.
in counseling with the Tennessee Department of Human Services. Father testified that he is employed
earning seven dollars per hour.

        Following the hearing, on June 3, 1998, the trial court entered an order granting Mother
temporary custody of the parties’ children and awarding Father visitation every other weekend. The
trial court ordered that no member of the opposite sex be present in the household when Mother or
Father had the children.

        On October 7, 1998, the trial court entered an order granting Mother and Father a divorce. The
order reserved the issue of permanent custody pending a hearing on January 8, 1999.

         On December 15, 1998, Mother filed an emergency petition to suspend Father’s visitation in
which she alleged that both of the parties’ children had been sexually abused by Father during
visitation. Following a hearing on January 8, 1999, the trial court ordered Mother, Father and the
children to undergo psychiatric evaluation with Dr. William Kenner (“Dr. Kenner”). The trial court
directed Dr. Kenner to make a report of his evaluation available to the trial court. The trial court
granted Father supervised visitation with the children.

        Dr. Kenner interviewed each family member, as well as a member of Mother’s family, Jennifer
Clairaday (“Clairaday”), whose aunt adopted Mother as a child. In addition, Dr. Kenner obtained
separate psychological testing of Mother by Dr. Auble. A report of his findings was submitted to the
trial court.

        In the report, Dr. Kenner first noted that Mother said that Sarah had made statements to her
raising the issue of sexual abuse. Mother stated that Jennifer also allegedly said that Father had put
her to bed and had gone into her bedroom. Dr. Kenner further stated in his report that Father had an
ordinary personal background. Dr. Kenner said that Father has no family or personal history of drug
or alcohol abuse. He observed that Father appeared concerned for his children’s welfare and
“shocked” by Mother’s allegations of sexual abuse. Dr. Kenner said that Father denied any
inappropriate behavior with his daughters. Dr. Kenner concluded that no diagnosis of mental illness
was possible for Father.

       Dr. Kenner noted that Mother told him that she had been sexually abused by her brother as a
young child. She stated that her father had molested the same brother, that her father had “messed
with” her sister and sister-in-law, and that her father later attempted to “see [Mother’s] chest” as she
came out of the shower when she was an adolescent. Mother told Dr. Kenner that she was removed
from her father’s custody by state authorities when she was thirteen years old. Dr. Kenner noted that
Mother admitted that she abused alcohol during her marriage to Father but that she claimed to have
stopped drinking when the parties separated.




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        In his report, Dr. Kenner also described his interview with Clairaday. Clairaday described
Mother as “impulsive,” with “limited ability to temper her behavior.” She said that Mother’s
impulsiveness had created problems with her children. Clairaday stated that Mother often yelled at
Jennifer and Sarah, and that the children appeared hyperactive when they were with Mother. Clairaday
stated that there was a marked difference in the children’s behavior when they were with Father.

       In his report, Dr. Kenner also discussed the separate psychological testing of Mother by Dr.
Auble. Dr. Kenner stated that Dr. Auble’s findings were consistent with Clairaday’s description of
Mother. Dr. Auble’s found that Mother’s cognitive style often leads her to jump to conclusions
without looking at all the data. Dr. Kenner stated that Dr. Auble’s findings and Clairaday’s description
are consistent with a personality disorder that one would expect after Mother’s history of abuse and
neglect.

        In Dr. Kenner’s interview with Jennifer and Sarah, both of the children described positive
feelings toward Father. Dr. Kenner observed that both Jennifer and Sarah were hyperactive. He stated
that, while the girls’ behavior could result from ADHD, it may also be related to anxiety about being
with Mother. Neither child described any behavior consistent with sexual abuse.

        Dr. Kenner concluded that there was no support for Mother’s allegation of Father’s sexual
abuse of the parties’ children. Instead, Dr. Kenner believed that the results of his evaluation raised
serious doubts about Mother’s competence to raise Jennifer and Sarah. He stated that risk factors
affecting Mother’s ability to parent the parties’ children included Mother’s potential for alcohol abuse
and her reaction if she were to lose the support of her second husband.

        On September 17, 1999, the trial court held a hearing to determine final custody of the parties’
children. Neither party presented any proof at the hearing. Therefore, the trial court had before it the
parties’ testimony at the January 8, 1999 hearing, as well as Dr. Kenner’s report.

        On September 22, 1999, the trial court entered an order granting Father sole custody of the
parties’ children. The trial court ordered that Mother pay child support to Father and awarded Mother
visitation with the children. From this order, Mother now appeals.

       On appeal, Mother argues that the trial court erred by emphasizing the results of Dr. Kenner’s
psychiatric evaluation to the exclusion of the statutory factors in making its custody determination.
Father argues that the trial court did not err in its custody award.

        The issue of child custody is reviewed de novo, with a presumption of correctness in the trial
court’s findings of fact, unless the evidence preponderates against them. See Tenn.R.App.P. 13(d).
The welfare and best interest of the child are the primary concerns in child custody proceedings. See
Tenn. Code Ann. § 36-6-106 (Supp. 1999); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct.
App.1997). The trial court must also consider the factors set forth in Tennessee Code Annotated §




                                                  -3-
36-6-106.2 The determination of the child’s best interests must turn on the particular facts of each
case. See Taylor v. Taylor, 849 S.W.2d 319, 326 (Tenn. 1993).

        In this case, neither Mother nor Father offered any proof at the hearing to determine custody
of the parties’ children. Consequently, the only evidence available to the trial court was that adduced
during the prior temporary custody hearing and Dr. Kenner’s report. At the temporary custody hearing,
both Mother and Father testified that they had jobs. Mother stated that she had been the children’s
primary caretaker since birth. Following the temporary custody hearing, Mother was granted
temporary custody of the children during the pendency of the case.

        In Dr. Kenner’s report, he concluded that Mother’s allegations of child sexual abuse against
Father could not be supported. As to Father, Dr. Kenner found that no diagnosis of mental illness was
possible. He also noted that both Jennifer and Sarah described positive feelings for Father.

        As to Mother, Dr. Kenner expressed “serious doubts” about her ability to properly raise the
children. Dr. Kenner observed that Mother had abused alcohol in the past and that her potential for
future abuse was a risk factor that could affect her parenting ability. Dr. Kenner noted Clairaday’s
description of Mother as “impulsive” and Clairaday’s statement that Mother’s behavior had affected
her daughters. Based on our review the evidence, we cannot conclude that the evidence preponderates


       2
         Tennessee Code Annotated § 36-6-106 provides that the following factors be considered in child
custody cases:

       (1) The love, affection and emotional ties existing between the parents and child;
       (2) The disposition of the parents to provide the child with food, clothing, medical care,
       education and other necessary care and the degree to which a parent has been the primary
       caregiver;
       (3) The importance of continuity in the child’s life and the length of time the child has lived
       in a stable, satisfactory environment . . .;
       (4) The stability of the family unit of the parents;
       (5) The mental and physical health of the parents;
       (6) The home, school and community record of the child;
       (7) The reasonable preference of the child if twelve (12) years of age or older. The court
       may hear the preference of a younger child upon request. The preferences of older children
       should normally be given greater weight than those of younger children;
       (8) Evidence of physical or emotional abuse to the child, to the other parent or to any other
       person . . .;
       (9) The character and behavior of any other person who resides in or frequents the home of
       a parent and such person’s interactions with the child; and
       (10) Each parent’s past and potential for future performance of parenting responsibilities,
       including the willingness and ability of each of the parents to facilitate and encourage a
       close and continuing parent-child relationship between the child and the other parent,
       consistent with the best interest of the child.

Id.

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against the trial court’s finding that it was in the children’s best interest to award custody to Father.
The trial court’s award of custody to Father is affirmed.

      The decision of the trial court is affirmed. Costs are assessed against the Appellant, Joanna
May Button Baggett, and her surety, for which execution may issue, if necessary.




                                               HOLLY KIRBY LILLARD, J.




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