                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                    MAY 17, 2004 Session

            KAREN B. GOLIGHTLY v. GARY KEVIN GOLIGHTLY

                   Direct Appeal from the Circuit Court for Shelby County
                        No. CT-007604-01     Robert A. Lanier, Judge



                  No. W2003-00870-COA-R3-CV - Filed September 14, 2004


This case involves a child custody dispute between the parents of two minor children. Following
a bench trial, the trial court granted the parties an absolute divorce and designated the mother as the
primary residential parent. In addition, the court below awarded the parties equal parenting time and
provided for an alternating visitation schedule in the Permanent Parenting Plan. The mother
subsequently filed a motion requesting the trial court to reconsider the custody arrangement, which
the trial court denied. The mother filed this appeal contesting the determination of custody by the
Circuit Court of Shelby County. For the reasons stated below, we affirm the decision of the circuit
court.


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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY , J., joined.

Craig B. Flood, Memphis, TN, for Appellant

Steven M. Markowitz, Memphis, TN, for Appellee

                                             OPINION

                                  Facts and Procedural History

        Karen Golightly (“Mother”) filed for an absolute divorce from Gary Golightly (“Father”)
on December 20, 2001. The parties have two minor children of the marriage; Isabella Golightly
(DOB: 06/21/1996) and Phineas Golightly (DOB: 11/30/1998) (collectively the “Children”). On
December 31, 2001, Father petitioned the trial court for temporary custody of the Children pending
the outcome of the divorce proceedings. Mother filed a counter-petition on January 24, 2002, also
seeking temporary custody.
        Around July 2001, prior to the divorce complaint being filed, Mother and Father attended
marriage counseling sessions with two licensed social workers.1 On February 1, 2002, the trial court
heard argument on Father’s motion to prevent these social workers from providing testimony related
to statements made by Father during the counseling sessions. Father asserted that communications
with these social workers was privileged. Based on our review of the record, it appears that the trial
court granted Father’s motion as to conversations solely between Father and the social workers. 2
        On April 19 and 26, 2002, the trial court heard proof presented by both parties regarding their
respective fitness for custody of the Children. During these hearings, the trial court heard
controverted testimony from several witnesses, including Mother and Father, regarding each parent’s
respective fitness as a parent. The focus of this appeal centers primarily around the testimony related
to Father’s mental stability.

         At the hearing, Mother related how Father suffered from depression, and how she became
concerned for the Children’s welfare because Father was suicidal.3 The trial court permitted Mother
to testify about Father’s statements to one of the social workers concerning suicidal thoughts.
Mother also subpoenaed Father’s medical records showing Father had been prescribed anti-
depressant medication by his primary care physician. Father denied being suicidal, and testified that
any depression he suffered stemmed from learning of Mother’s affair with another man in August
2001. On cross-examination, Father’s counsel sought to show that in fact Mother was suicidal.4 The
trial court also heard testimony from several other witnesses concerning Father’s mental health. The
parties offered additional testimony from relatives, co-workers, and acquaintances concerning their
relative fitness as parents.




         1
          The parties originally attended sessions with Ms. Ann Finch. Later, the parties decided to attend sessions with
another social worker, Ms. Karen Riss.

         2
          The trial court instructed that an order be drawn up reflecting the court’s ruling on the testimony of the social
workers, however, upon reviewing the record we are unable to find any such order.

         3
             Mother alleged that Father had previously made statements about jumping off the Mississippi River bridge.

         4
          Mother testified that she authored a book in which she and the female character shared striking similarities.
In the book the main character commits suicide by jumping from the Mississippi River bridge. Mother also admitted
that she made a statement to Father’s brother about her jumping from the Mississippi River bridge.

                                                           -2-
                On April 30, 2002, the court below issued a memorandum opinion in which the court
found both parents to be fit, and that the then existing custody arrangement should be maintained.5
In that opinion, the court below stated:

                During the marriage, the parties shared parenting responsibilities to
                a remarkable extent. Neither parent considers the other an unfit
                parent. It would be virtually impossible to say which parent provided
                more parenting to the child. Wife accuses husband of suffering
                depression, while husband points to wife’s comparative rigidity and
                lack of cooperation, evidenced on one occasion by a threat to tell the
                police that her children had been kidnaped if the husband picked them
                up from school without her consent. These complaints do not
                obscure the fact that, as parents, both parties are loving and concerned
                caretakers of their children.

On August 5, 2002, the trial court issued an order regarding custody of the Children, adopting the
findings from the April 30th memorandum opinion. Mother submitted a proposed Permanent
Parenting Plan on August 26, 2002. On September 18, 2002, Mother filed a motion asking the trial
court to reconsider the custody determination. On October 10, 2002, Mother filed another motion
asking the trial court to modify the custody order, alleging a substantial change of material
circumstances.

        On November 12, 2002, the trial court conducted a hearing to resolve all outstanding issues
related to the divorce. On November 14, 2002, the court entered a final divorce decree and parenting
plan. In this final decree, the trial court referenced its April 30, 2002, memorandum opinion and
noted that the parties were unable to reach an agreement on custody. In the decree, the court stated:




        5
          The court’s memorandum opinion adopted the custody arrangement the parties were operating under by
agreement at the time, which worked as follows:

                W ife has permitted extensive contact between the husband and children and this has
                resulted in some friction and dissatisfaction by wife. W ife’s current employment
                schedule is from 8:00 a.m. until 12:30 p.m. Mondays, W ednesdays and Fridays, and
                from 8:30 a.m. until 2:30 p.m. on Tuesdays and Thursdays. She is off on the
                weekends. She currently takes the children to school, while husband picks the
                children up at 12:30 p.m. on Tuesdays and Thursdays, takes them home and stays
                with them until wife gets home at approximately 3:00 p.m. On weekends, since
                January 2002, husband has been having the children on one night. During
                weekdays, wife has reluctantly allowed him to come from 6:30 p.m. to 9:30 p.m.,
                Sunday through Thursdays. She is usually present, but leaves to avoid any conflict.
                The parties have no particular holiday arrangement but work cooperatively. On
                W ednesdays, the husband arrives at 8:30 p.m. because he performs volunteer work
                at St. Jude Hospital on that night. Mondays through Fridays, he arrives at 6:45 or
                7:00 a.m. to assist with getting the children up and ready for school.

                                                       -3-
                   The father’s desire is to share an equal part in the childrens’ lives
                   with the mother and the court sees no reason why that should not be
                   done. For that reason, the parenting plan of even date with this
                   decree provides for a substantially equal division of time between the
                   two parents.

The Permanent Parenting Plan provided that Mother would be the primary residential parent, and
that the parties would share substantially equal time with the Children.

         Dissatisfied with this result, Mother filed a motion with the trial court asking the court to
reconsider the custody arrangement and to provide additional findings of fact. On March 14, 2003,
the trial court entered an order denying Mother’s motion. Mother subsequently filed a timely notice
of appeal to this Court on April 4, 2003, raising the following issue, as we perceive it, for our review:
whether the trial court below erred by failing to properly compare the relative fitness of the parties
when making a custody determination.6 For the reasons set forth below, we affirm the trial court on
this issue.

                                                Standard of Review

        This case was tried without a jury, therefore, our review of these issues is governed by
Tennessee Rule of Appellate Procedure 13(d), which provides that “review of findings of fact by the
trial court in civil actions shall be de novo upon the record of the trial court, accompanied by a
presumption of correctness of the finding, unless the preponderance of the evidence is otherwise.”
Tenn. R. App. P. 13(d). The standard of review found in Rule 13(d) applies when this court
undertakes a review of findings of fact in child custody cases. Hass v. Knighton, 676 S.W.2d 554,
554 (Tenn. 1984). We are mindful that in cases involving custody arrangements, “the details of
custody of and visitation with children are peculiarly within the broad discretion of the Trial Judge
whose decisions are rarely disturbed.” Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn. Ct. App.
1973). “Custody and visitation determinations often hinge on subtle factors, including the
parents’demeanor and credibility during the divorce proceedings themselves.” Gaskill v. Gaskill,
936 S.W.2d 626, 631 (Tenn. Ct. App. 1996). “Where a divorce case is tried upon oral testimony and
issues of fact depend largely upon the comparative credibility of the parties, the findings of the Trial
Judge are entitled to great weight on appeal and are not to be lightly overturned.” Edwards, 501
S.W.2d at 288 (citing Clardy v. Clardy, 136 S.W.2d 526, 529 (Tenn. Ct. App. 1939)).




         6
           In her brief, M other set forth two issues for our review. Both issues raised by M other are essentially the same;
asking this Court to find that the court below failed to properly compare the relative fitness of the parties when making
a custody determination. Father’s brief presented no issues for review, but merely provided that Mother’s issues on
appeal were without merit.

                                                            -4-
                                                   Child Custody

        Mother asserts that the trial court should have awarded her primary parenting time, while
Father should have received visitation every other weekend, one-half of the holidays, and one-half
of each summer. In her brief, and during oral argument, Mother argued that “[t]he trial court failed
to compare the fitness of the two parties and then decide which parent, under all the circumstances,
was comparatively more suited to have custody/parenting time of the children.” Mother argues that
the court below failed to consider the statutory factors in section 36-6-106(a), specifically section
36-6-106(a)(5) which requires the court to consider the mental health of the parents. In support of
her argument, Mother asserts that the trial court’s final divorce decree makes no findings of fact, but
merely states that “[t]he father’s desire is to share an equal part in the childrens’ lives with the
mother and the court sees no reason why that should not be done.”

       Mother also argues that this Court should “presume that Mr. Golightly’s mental health
records would not reflect favorable [sic] on him since he was unwilling to allow the court to consider
them.” Mother argues that Father’s assertion of privilege found in section 63-23-107 of the
Tennessee Code, to prevent the social workers from disclosing communications made during
therapy, constitutes additional evidence that the court below failed to consider Father’s mental health
when making its custody determination.7

      The legislature has provided that the trial court must consider the following factors when
making a custody determination:

                          (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, such determination shall be
                  made upon the basis of the best interest of the child. The court shall
                  consider all relevant factors including the following where applicable:
                          (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; provided, that where there is a finding, under § 36-6-
                  106(8), of child abuse, as defined in § 39-15-401 or § 39-15-402, or
                  child sexual abuse, as defined in § 37-1-602, by one (1) parent, and
                  that a non-perpetrating parent has relocated in order to flee the
                  perpetrating parent, that such relocation shall not weigh against an
                  award of custody;


       7
           Mother does not contest the validity of the trial court’s ruling on the privilege issue on appeal.

                                                           -5-
                       (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; provided, that where there are
               allegations that one (1) parent has committed child abuse, [as defined
               in § 39-15-401 or § 39-15-402], against a family member, the court
               shall consider all evidence relevant to the physical and emotional
               safety of the child, and determine, by a clear preponderance of the
               evidence, whether such abuse has occurred. The court shall include
               in its decision a written finding of all evidence, and all findings of
               facts connected thereto. In addition, the court shall, where
               appropriate, refer any issues of abuse to the juvenile court for further
               proceedings;
                       (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.

Tenn. Code Ann. § 36-6-106(a) (2003). The trial court, in considering the above factors, must
engage in a “comparative fitness” analysis of both parents. Bah v. Bah, 668 S.W.2d 663, 666 (Tenn.
Ct. App. 1983). “The only rigid principle is and must be that the best interests of the child are
paramount in any custody determination.” Id.

        “When the trial court makes no specific findings of fact . . . we must review the record to
determine where the preponderance of the evidence lies.” Kendrick v. Shoemake, 90 S.W.3d 566,
570 (Tenn. 2002) (citing Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997)). In this case,
contrary to Mother’s argument, the trial court did make sufficient findings of fact, and we must
affirm unless the evidence preponderates against those findings. Willcutts v. Willcutts, No. W2002-
02636-COA-R3-CV, 2004 Tenn. App. LEXIS 151, at *16–17 (Tenn. Ct. App. Mar. 4, 2004).

        Based on our review of the record below, the trial court properly considered the statutory
factors listed in section 36-6-106(a) of the Tennessee Code and engaged in a comparative fitness
analysis of both parents. At the hearings on April 19 and 26, 2002, the trial court heard conflicting
testimony regarding the mental health of both Mother and Father. In addition, the court heard


                                                 -6-
conflicting testimony from numerous witnesses concerning both parents’ fitness. Following those
hearings, the court below issued a memorandum opinion regarding custody of the Children. In that
opinion, the court expressly referenced Mother’s proof regarding Father’s depression, as well as
Father’s proof regarding Mother’s uncooperative nature. The trial court incorporated these findings
into the August 5, 2002, order, specifically referencing the April 30, 2002, memorandum opinion.

               It is true that section 36-6-106(a) “does require a trial court to consider all of the listed
factors which are applicable.” Burnett v. Burnett, No. E2002-01614-COA-R3-CV, 2003 Tenn. App.
LEXIS 508, at *16 (Tenn. Ct. App. July 23, 2003). “[T]he statute does not require a trial court,
when issuing a memorandum opinion or final judgment, to list every applicable factor along with
its conclusion as to how that particular factor impacted the overall custody determination.” Id.
(emphasis added).

       Turning to Mother’s argument concerning Father’s assertion of privilege related to
conversations with the social workers, the Tennessee Code provides as follows:

                  The confidential relations and communications between a client and
                  a certified master social worker, or an independent practitioner of
                  social work holding a valid certificate or registration, as defined in
                  this chapter, are placed upon the same basis as those provided by law
                  between licensed psychologists, licensed psychological examiners,
                  licensed senior psychological examiners, certified psychological
                  assistants and client, and nothing in this chapter shall be construed to
                  require any such privileged communication to be disclosed.

Tenn. Code. Ann. § 63-23-107(a) (2003).8 While the trial court granted Father’s motion to prevent
the social workers from testifying, the court did permit Mother to testify as to statements made by
Father related to his mental health. Particularly, Mother testified about statements made by Father
to her personally, as well as statements made during the counseling sessions at which she was
present.

       Even in the face of such privilege, Mother still had a means by which she could have further
developed the evidence regarding Father’s mental state. Tennessee Rule of Civil Procedure 35.01
provides:

                  When the mental or physical condition (including the blood group) of
                  a party, or of a person in the custody or under the legal control of a
                  party, is in controversy, the court in which the action is pending may
                  order the party to submit to a physical or mental examination by a


         8
         “The psychologist-client privilege, Tenn. Code Ann. § 63-11-213, and social worker-client privilege, Tenn.
Code Ann. § 63-23-107, are placed on the same basis as the attorney-client privilege.” Kirchner v. Mitsui & Co., Inc.,
184 F.R.D. 124, 129 (M .D. Tenn. 1998).

                                                         -7-
               suitably licensed or certified examiner or to produce for examination
               the person in custody or legal control. The order may be made only
               on motion for good cause shown and upon notice to the other person
               to be examined and to all parties and shall specify the time, place,
               manner, conditions, and scope of the examination and the person or
               persons by whom it is to be made.

This rule “contains no limitation on the actions to which it applies; therefore it is available in any
pending civil proceeding to which the Tennessee Rules of Civil Procedure apply.” Odom v. Odom,
No. M1999-02811-COA-R3-CV, 2001 Tenn. App. LEXIS 881, at *13–14 (Tenn. Ct. App. Dec. 5,
2001) (addressing the application of the rule in the context of a custody dispute). At the hearing on
November 12, 2002, during cross-examination, Mother testified as follows:

               Q:      You’ve been talking about alleging that Mr. Golightly has
                       mental problems from the beginning of this trial, right?

               A:      Right.

               Q:      But you’ve never made a motion to the Court for any sort of
                       independent psychiatric or psychological examination, have
                       you?

               A:      No. But I’ve considered it, and especially since in therapy he
                       said he could potentially kill himself, I thought – he was put
                       on anti-depressants. That really does worry me still.

        After hearing all the testimony presented, the trial court determined that an equal custody
arrangement would be in the Children’s best interest. The record indicates that the trial court
considered the relevant factors listed in section 36-6-106(a) of the Tennessee Code, including the
mental health of the parties. “The burden is upon the appellant to show that the evidence
preponderates against the judgment of the trial court.” Willcutts v. Willcutts, No. W2002-02636-
COA-R3-CV, 2004 Tenn. App. LEXIS 151, at *26 (Tenn. Ct. App. Mar. 4, 2004). The evidence in
this case does not preponderate against the trial court’s finding that both Father and Mother are fit
parents and should be awarded equal custody.




                                                 -8-
                                          Conclusion

        For the foregoing reasons, we affirm the decision of the circuit court. Costs are adjudged
against Appellant, Karen B. Golightly, and her surety for which execution may issue if necessary.




                                                     ___________________________________
                                                     ALAN E. HIGHERS, JUDGE




                                               -9-
