                      IN THE COURT OF APPEALS OF TENNESSEE
                                  AT NASHVILLE
                                 Assigned on Briefs February 23, 2004

                  JAMIE EDWARD HINES v. TERRELL LYNN SIMMS

                           Appeal from the Circuit Court for Davidson County
                               No. 01D-2055     Muriel Robinson, Judge



                         No. M2003-01459-COA-R3-CV - Filed August 24, 2004


This appeal involves a custody dispute triggered by a paternity action. The trial court fashioned a
permanent parenting plan which named Father the primary residential parent during the school year
and Mother the primary residential parent during summer vacation. Mother appeals. We affirm the
judgment of the trial court.

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

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J.,
M.S., and FRANK G. CLEMENT , JR., J., joined.

Clark Lee Shaw, Nashville, Tennessee, for the appellant, Terrell Lynn Simms.

Thomas K. Bowers, Nashville, Tennessee, for the appellee, Jamie Edward Hines.

                                                      OPINION

        Jamie Hines (“Father”) and Terrell Simms (“Mother”) are the parents of a minor child, a son,
born August 2, 1999. The parties never married but lived together with their son until Mother
announced in August 2001 that she was leaving Father and returning to her home in Missouri with
their son.1 Father petitioned the trial court to establish paternity,2 enjoin Mother from removing their
son from their home, set child support, and create a temporary parenting plan pending trial.




        1
            Mother planned to live with her mother in St. Louis, Missouri and attend college.

        2
          Tenn. Code Ann. § 36-2-305(b)(1)(C) permits a man claiming to be a child’s father to file a complaint to
establish parentage.
       A temporary restraining order was issued enjoining Mother from moving with the child to
Missouri.3 Mother answered the paternity petition, countersued for child support, moved to dissolve
the TRO and moved to restrain Father from forcing her from their home.4 A restraining order was
issued against Father restraining him both from forcing Mother to move from their home and
removing the child from Mother’s temporary physical possession pending trial.

        Following a hearing in October 2001, the trial court5 entered an order finding that Mr. Hines
was the child’s natural father and fashioned a temporary parenting plan which required Father to pay
$475 per month in child support.6 The TRO against Mother was dissolved, and she was granted
permission to move to Missouri with the parties’ son. The trial court further found that affording
Father parenting time was in the best interest of the child, and accordingly named Father the
residential parent for two five day periods out of each month, with Mother being the residential
parent the remainder of the month.7 Specifically the order provided that the “child shall reside with
the Father every first and third Sunday from 7:00 p.m. to the following Friday at 7:00 p.m. The
parties will meet at a designated location an equal distance from the parties’ residences, which is the
‘Waffle Hut’ in Metropolis, Illinois.”

        Unfortunately, following Mother’s move to Missouri with the child, the parties’ relationship
further deteriorated, and the scheduled bimonthly visitation exchanges often broke down into
shouting matches that on occasion necessitated the police being involved.8

        In June of 2002, a contempt petition was filed by Mother alleging that Father was late in child
support payments and had not exercised visitation. A show cause hearing on the contempt was set
for August. In the meantime, Father answered and denied the allegations and obtained a TRO
against Mother enjoining her from assaulting Father. Following the show cause hearing, the trial
court dismissed both contempt petitions and ordered that the temporary parenting plan remain in




         3
             Chancellor Carol McCoy granted the TRO.

         4
          Mother also sought attorney’s fees and on appeal argues that the trial court abused its discretion in not awarding
her fees under Tenn. Code Ann. § 36-2-311(a)(14) and Tenn. Code Ann. § 36-5-103(c).

         5
             Circuit Judge Carol Soloman sat by interchange for Circuit Judge Muriel Robinson.

         6
         The trial court found a downward deviation from the Child Support Guidelines was appropriate given the travel
expenses Father would incur making four round-trips per month from Nashville to Missouri for visitation with his son.

         7
          In addition, annual holidays were to alternate between the parents. In the event Mother did not move to
Missouri, the order provided for the child to reside with Father three days each week and with Mother the remaining four
days.

         8
           The exchanges became so contentious with either Mother not showing up or claiming Father had not shown
up that Father testified at trial that he always purchased gas in the vicinity of the exchange in order to produce gas
receipts to prove the place, time and date of his attempted visits.

                                                             2
effect.9 Once again, in January of 2003, Mother filed a contempt petition, and Father followed suit
in February of 2003 with his own contempt petition against Mother. Both petitions alleged visitation
violations.

         In March 2003, the trial to establish the permanent parenting plan was held. Father testified
that he should be his son’s primary care giver since he was a teacher and considered education
extremely important for his son. He also detailed numerous incidents both before and after the
parties’ separation where Mother was abusive both verbally and physically to him. Father further
testified that Mother would take out her frustration with him on their son during the exchanges.
Father’s mother, Felicia Hines, testified to times she had witnessed Mother being abusive to her son
both before their separation and at some of the visitation exchanges. In addition, Brittany Hazley,
a friend of Father, also testified that she had observed Mother’s and her male friend’s misbehavior
at visitation exchanges.

        In contrast, Mother, acting pro se, testified that she loved her son and had always been the
primary caregiver for him. When questioned briefly by the trial court, Mother explained she left
Father because she felt she was having to do too much of the parenting by herself. Mother’s mother,
Rita Rivers, testified that her daughter was a loving, caring mother; that she and her husband had
helped Mother and Father when the child was born; but that she did not want to interfere too much.
In contrast, Ms. Rivers explained that Father’s mother, Ms. Hines, was too involved with the
situation and that she believed it was Ms. Hines, not Father, who was behind Father’s request for
custody. She further testified that Father had had some trouble keeping jobs. Mother’s final witness
was her aunt, Tina Brycen, who testified that Mother was a wonderful mother and that the child was
a “mommy’s boy” since he always had to be with Mother when she was not in school.

       Following the proof and prior to announcing its decision, the trial court admonished Mother
regarding her future conduct. The court stated:

        First off, from what I’m hearing, Ms. Simms, you’re trying your best to defeat this
        man’s relationship with his child. This Court will not allow you to do that, and if you
        continue to do it, then obviously you’re not going to be any form of custodian here.

        You are both fit parents for this child. The problem is you don’t respect each other.
        The proof shows that you have been volatile during these visitations. You curse in
        front of your child. You do things that are not appropriate for a parent. That
        evidence is overwhelming in this record. So, I’m going to do what I think is in the
        best interest and welfare of this child at this time.
        You picked this gentleman to be the father of your child, and you’re going to have
        to deal with it until your child has reached majority which is 18 and graduates with
        his regular senior class. So, you all need to get in a mood to parent this child


        9
        Counsel for Mother, Ralph Frazier, was permitted by the trial court to withdraw. From that point in December
2002, Mother represented herself pro se in the trial court.

                                                         3
         appropriately, and have respect for each other. If you continue in your vain, you’re
         going to lose all rights to this child. I find it to be in the best interest and welfare of
         this child that joint custody be the order of The Court. . . .10

         The trial court’s final order found that:

         1. Both parties are fit to be parents.
         2. Mother has attempted to defeat the Father’s relationship with parties’ minor child.
         3. Neither party respects the other.
         4. Mother curses in front of the minor child and conducts herself in a manner not in the best
         interests and welfare of the minor child. . . .

         [T]he parties need to respect one another and in the event the Mother continues her
         inappropriate conduct in the presence of the child, she may lose any form of custodial
         rights to the child. . . .

         The parties are hereby awarded joint custody of the minor child . . . . Until the minor
         child is enrolled in kindergarten, Mother shall be custodian from July 1st until
         December 31st. Father will be the custodian from January 1st until June 30th. . . .

         Once the minor child is enrolled in kindergarten, the Father shall be custodian of the
         minor child during the school year, from two days before the beginning of school
         until the end of May. Once the child is enrolled in kindergarten and later years,
         Mother shall be custodian of the minor child for the months of June, July and August
         until two days before school starts in August. . . .

         Mother shall have visitation of the minor child during Father’s custodial periods for
         one weekend per month from 6:00 p.m. on the first Friday of each month until 6:00
         p.m. on the next Sunday and for one optional weekend upon 48 hours notice to the
         Father. Father shall have the same visitation during the Mother’s custodial periods.
         ...

         Mother is hereby restrained and enjoined from harassing, verbally abusing, or calling
         the Father or his family members any vile or ugly names.

        The permanent parenting plan was attached to the trial court’s final order. Mother appeals
the trial court’s plan because it makes Father the primary residential parent for their son once he
enters kindergarten.



         10
          The court also advised Mother that she needed to stop “ranting and raving” and that the parties needed to get
along. The court stated that, as far as the future was concerned, the court was wiping the slate clean with regard to any
previous bad conduct.

                                                           4
                                               ANALYSIS

                                 I. RESIDENTIAL PARENTING PLAN

       Tenn. Code Ann. § 36-6-404 requires every final custody order to incorporate a permanent
parenting plan for any minor children the subject of a divorce, legal separation, annulment or
separate maintenance action.

        A parenting plan is defined in Tenn. Code Ann. § 36-6-402(3) as “a written plan for the
parenting and best interests of the child, including the allocation of parenting responsibilities and the
establishment of a residential schedule, as well as an award of child support consistent with title 36,
chapter 5.” According to Tenn. Code Ann. § 36-6-404, a permanent parenting plan shall:

        (a)(1) Provide for the child’s changing needs as the child grows and matures, in a
        way that minimizes the need for further modifications to the permanent parenting
        plan;
        (2) Establish the authority and responsibilities of each parent with respect to the
        child, consistent with the criteria in this part;
        (3) Minimize the child’s exposure to harmful parental conflict;
        (4) Provide for a process for dispute resolution, before court action, unless precluded
        or limited by § 36-6-406; . . .
        (5) Allocate decision-making authority to one (1) or both parties regarding the child’s
        education, health care, extracurricular activities, and religious upbringing. The
        parties may incorporate an agreement related to the care and growth of the child in
        these specified areas, or in other areas, into their plan, consistent with the criteria in
        this part. Regardless of the allocation of decision making in the parenting plan, the
        parties may agree that either parent may make emergency decisions affecting the
        health or safety of the child;
        (6) Provide that each parent may make the day-to-day decisions regarding the care
        of the child while the child is residing with that parent;
        (7) Provide that when mutual decision making is designated but cannot be achieved,
        the parties shall make a good faith effort to resolve the issue through the appropriate
        dispute resolution process, subject to the exception set forth in subdivision (a)(4)(F);

        Under the legislation, the court is to determine a residential schedule, which designates the
primary residential parent and designates in which parent’s home the child will reside on given days
during the year. Tenn. Code Ann. § 36-6-402(5). A residential schedule is defined as:

        . . . the schedule of when the child is in each parent’s physical care, and it shall
        designate the primary residential parent [the parent with whom the child resides more
        than 50% of the time]; in addition, the residential schedule shall designate in which
        parent’s home each minor child shall reside on given days of the year, including
        provisions for holidays, birthdays of family members, vacations, and other special


                                                    5
         occasions, consistent with the criteria of this part; provided, that nothing contained
         herein shall be construed to modify any provision of § 36-6-108; . . . .

Tenn. Code Ann. § 36-6-402(5). When fashioning the residential schedule, the court is instructed
to take into account the factors listed in Tenn. Code Ann. § 36-6-404(b):

         . . . the court shall make residential provisions for each child, consistent with the
         child’s developmental level and the family’s social and economic circumstances,
         which encourage each parent to maintain a loving, stable, and nurturing relationship
         with the child. The child’s residential schedule shall be consistent with this part. If
         the limitations of § 36-6-406 are not dispositive of the child’s residential schedule,11
         the court shall consider the following factors:

         (1) The parent’s ability to instruct, inspire, and encourage the child to prepare for a
         life of service, and to compete successfully in the society which the child faces as an
         adult;
         (2) The relative strength, nature, and stability of the child’s relationship with each
         parent, including whether a parent has taken greater responsibility for performing
         parenting responsibilities relating to the daily needs of the child;
         (3) 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 interests of the child;
         (4) Willful refusal to attend a court-ordered parent education seminar may be
         considered by the court as evidence of that parent’s lack of good faith in these
         proceedings;
         (5) The disposition of each parent to provide the child with food, clothing, medical
         care, education, and other necessary care;
         (6) 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;
         (7) The love, affection, and emotional ties existing between each parent and the
         child;
         (8) The emotional needs and developmental level of the child;
         (9) The character and physical and emotional fitness of each parent as it relates to
         each parent’s ability to parent or the welfare of the child;


         11
           Tenn. Code Ann. § 36-6-406 instructs a court to limit the residential time for a parent that has engaged in
certain specified conduct or exhibits certain traits, including, but not limited to: (1) willful abandonment; (2) physical
or sexual abuse; (3) emotional abuse; (4) neglect or nonperformance of parental duties; or (5) an emotional or physical
impairment which interferes with parental responsibilities. Neither party herein argues that the trial court should have
utilized Tenn. Code Ann. § 36-6-406 to limit residential time with either parent.




                                                            6
        (10) The child’s interaction and interrelationships with siblings and with significant
        adults, as well as the child’s involvement with the child’s physical surroundings,
        school, or other significant activities;
        (11) The importance of continuity in the child’s life and the length of time the child
        has lived in a stable, satisfactory environment;
        (12) Evidence of physical or emotional abuse to the child, to the other parent or to
        any other person;
        (13) 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;
        (14) The reasonable preference of the child if twelve (12) years of age or older. . . .
        (15) Each parent’s employment schedule, and the court may make accommodations
        consistent with those schedules; and
        (16) Any other factors deemed relevant by the court.

        These factors incorporate those set out in Tenn. Code Ann. § 36-6-106, the statute which
guided the trial court in custody determinations prior to the parenting plan legislation. That statute
has not been repealed. The factors set out in Tenn. Code Ann. § 36-6-106 are still relevant as are
factors established by the courts. The primary concern in determinations of a child’s residential
placement remains the best interests of the child, and consideration of the factors under Tenn. Code
Ann. § 36-6-404(b) still necessitates a comparative analysis.

        Thus, by statute as well as case law, the welfare and best interests of the children are the
paramount concern in custody and residential placement determinations, and the goal of any such
decision is to place the child in an environment that will best serve his or her needs. Parker v.
Parker, 986 S.W.2d 557, 562 (Tenn. 1999); Lentz v. Lentz, 717 S.W.2d 876, 877 (Tenn. 1986); Luke
v. Luke, 651 S.W.2d 219, 221 (Tenn. 1983). The General Assembly has found that “[t]he best
interests of the child are served by a parenting arrangement that best maintains a child’s emotional
growth, health and stability, and physical care.” Tenn. Code Ann. § 36-6-401(a). The aim of a
custodial or residential arrangement is to promote the child’s welfare by creating an environment that
promotes a nurturing relationship with each parent. Tenn. Code Ann. § 36-6-404(b); Aaby v.
Strange, 924 S.W.2d 623, 629 (Tenn. 1996).

        Trial courts must exercise broad discretion in child custody matters. Parker, 986 S.W.2d at
563. Like a custody decision, a determination of the best residential placement plan for a child must
turn on the particular facts of each case. Such decisions often hinge on the trial court’s assessment
of the demeanor and credibility of the parents and other witnesses. Adelsperger, 970 S.W.2d 482,
485 (Tenn. Ct. App. 1992) . The trial court is in a far better position than this court to observe the
demeanor of the witnesses and resolve the issues in the case that are based on the credibility of the
witnesses. McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitacker v. Whitacker,
957 S.W.2d 834, 837 (Tenn. Ct. App. 1997).

       Because of the discretion given trial courts in this area and because of the fact specific nature
of such decisions, appellate courts are reluctant to second-guess a trial court’s determination


                                                   7
regarding custody and visitation. Nelson v. Nelson, 66 S.W.3d 896, 901 (Tenn. Ct. App. 2001);
Rutherford v. Rutherford, 971 S.W.2d 955, 956 (Tenn. Ct. App. 1997) (quoting Gaskill v. Gaskill,
936 S.W.2d 626, 631(Tenn. Ct. App. 1996)). Accordingly, this court will decline to disturb the
parenting plan fashioned by the trial court herein unless that decision is based on a material error of
law or the evidence preponderates against it. Nichols v Nichols, 792 S.W.2d 713, 716 (Tenn. 1990);
Adelsperger, 970 S.W.2d at 485.

        Here, the trial court determined that the Father should be the primary residential parent during
the school year and Mother the residential parent during summer vacation. Because the parents live
in different states, continuing the six-month residential placement split would necessarily prevent
the child from attending the same school for an entire school year. Such a situation is generally not
in the child’s best interest, and the court properly divided residential time based on the school year.

        Mother’s real complaint is that Father, not she, was made residential parent for the school
year. Mother asserts that the trial court was “not happy with [her] going to Missouri for the support
of her family” and punished her for relocating.

        We have carefully reviewed the trial transcript and find nothing to support Mother’s claim
that the trial was displeased with her move to Missouri. It is clear from the trial court’s remarks
during the hearing and in her final order that the court was displeased with Mother’s “volatile”
conduct. Specifically the trial court found that Mother had intentionally prevented the child from
seeing his father, had insisted on arguing with Father in front of the child, and had made derogatory
remarks about Father to the child.

         Both parties presented testimony and made arguments about the other’s failings. No purpose
is served by our further recounting the details of those arguments herein. We have carefully
reviewed the record herein as well as the trial court’s ruling in light of specific arguments raised by
Mother. We find there is no basis to conclude that the trial court did not fully consider all factors
relevant to the custody or parenting plan for the parties’ son. The fact that Father is a teacher and
testified that he highly valued education appeared to impress the trial court that it would be in the
child’s best interest to live with Father during the school year. In addition, the court found that
Mother had not acted in the child’s interest by her behavior. The evidence does not preponderate
against any of the trial court’s factual findings. We find the trial court adopted a plan designed to
serve the child’s best interests. Accordingly, we affirm the parenting plan adopted by the trial court.

                                        II. ATTORNEY ’S FEES

        Tennessee follows the American Rule requiring “litigants to pay their own attorney’s fees
in the absence of a statute or contractual provision otherwise.” State v. Brown & Williamson
Tobacco Corp., 18 S.W. 186, 194 (Tenn. 2000); John Kohl & Co. v. Dearborn & Ewing, 977 S.W.
528, 534 (Tenn. 1998). In custody disputes, the question of whether to award attorney’s fees and the
amount of any such fees is largely in the discretion of the trial court, and the appellate court will not



                                                   8
interfere except upon a clear showing of abuse of that discretion.” Deas v. Deas, 774 S.W.2d 167,
170 (Tenn. 1989).

        Mother complains that the trial court erred in not awarding her attorney’s fees pursuant to
Tenn. Code Ann. § 36-2-311(a)(14) and § 36-5-103(c). Even if Mother were eligible for fees under
either statute, we find the trial court did not abuse its discretion in denying her request for fees.

        In his brief, Father complains that Mother’s appeal is frivolous and that he is entitled to an
award of attorney’s fees. It is true that Tenn. Code Ann. § 27-1-122 permits this court to declare an
appeal frivolous and award attorney’s fees. An appeal is frivolous if it is devoid of merit or it is has
no reasonable chance of success. Wakefield v. Longmire, 54 S.W.3d 300, 304 (Tenn. Ct. App.
2001). Despite the standard of review for custody determinations, such determinations are very fact
dependent. We cannot agree with Father that Mother’s appeal is frivolous and, therefore, we deny
his request for attorney’s fees.

                                            CONCLUSION

      We affirm the trial court’s judgment in all respects. Costs are taxed to the appellant, Terrell
Lynn Simms.



                                                       ___________________________________
                                                       PATRICIA J. COTTRELL, JUDGE




                                                   9
