                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                November 14, 2002 Session

   ALICA DELANE RAKESTRAW v. GREGORY KEITH RAKESTRAW

                      Appeal from the Circuit Court for Bradley County
                        No. V-00-1003    Jerri S. Bryant, Chancellor

                                   FILED MARCH 18, 2003

                                 No. E2002-01151-COA-R3-CV


        The sole issue in this divorce case is whether the Trial Court reached the correct decision
regarding custody of the parties’ child. The Court granted primary custodial care of the parties’
daughter, Kendra Paige Rakestraw, then 10 years old, to Gregory Keith Rakestraw (“Father”). Alica
Delane Rakestraw (“Mother”) argues on appeal that the evidence preponderates against the Court’s
exercise of discretion in rendering its custody decision, and that the Court erred in denying her
motion to alter or amend the judgment and her motion for a new trial. We affirm the judgment of
the Trial Court in all respects.


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

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
CHARLES D. SUSANO, JR., JJ., joined.

Ashley L. Ownby, Cleveland, for the Appellant, Alica Delane Rakestraw

James F. Logan, Jr., Cleveland, for the Appellee, Gregory Keith Rakestraw

                                 MEMORANDUM OPINION

        Mother filed for divorce on November 13, 2000. A hearing was conducted on August 9,
2001, for the sole purpose of determining custodial and visitation arrangements for Kendra. Prior
to the parties’ separation and divorce, they had lived in Georgetown, in Bradley County. At the
hearing the Mother testified that she had moved to Chattanooga in order to be closer to her place of
employment, and that she intended to enroll Kendra in a private school in Chattanooga.

       After hearing proof from both parties, the Trial Court held that primary custodial care and
responsibility should be with the Father. The Court granted the Mother visitation on every other
weekend from Friday evening until Monday morning, and also on every Tuesday evening. The Trial
Court found as follows in relevant part:


              I will say that most all factors are substantially equal with both
              parents. I’m supposed to be judging the comparative fitness of these
              parties. There is no one that I have found to be unfit. I believe either
              by stipulation and by testimony of the parties that this child has love
              and affection and emotional ties to both parents and both parents to
              this child.
                       The disposition of the parents to provide the child with food,
              clothing, medical care, education, that seems to be on a substantially
              equal factor for both parties. The wife has been the primary caregiver
              for part of the child’s life, assisted by the husband. The husband has
              taken on a greater degree even from the temporary hearing forward.
              I think he has the disposition to be a primary caregiver as well.
                               *                *                *
              I think the character and behavior of both parties is exemplary. . .You
              both seem willing to facilitate and encourage a close relationship with
              the other parent and both seem willing to take the best interest of the
              child at heart.
                       All of that being substantially equal, I’m disturbed that this
              could not have been worked out. I wish that you-all would choose a
              place to live where you were closer together so that you could have
              substantially equal co-parenting time because I think you’re both
              pretty good parents, but choosing to live in Chattanooga makes that
              distance harder to deal with logistically so I think the final factor that
              I have to come down to is number three, the importance of continuity
              in the child’s life and the length of time the child has lived in a stable,
              satisfactory environment. It’s interesting when you try to define the
              word satisfactory environment.
                       I find that it’s in the best interest of the child at this time to
              remain near her family and friends and enter the school here that is
              accredited. I think the father seems to be closer to the larger family
              unit which has had a significant influence on this child’s life and
              [has] been a significant part of this child’s life. I believe the
              community and school in the Black Fox area are more conducive to
              the advancement and nurturing of this child.

       On appeal, Mother raises the following issue, as taken from her brief: “whether the Trial
Court erred in granting custody to the Father where the preponderance of the evidence shows that
the continuity in the child’s life would be better served by awarding custody to the Mother.”



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       In the recent case of Eldridge v. Eldridge, 42 S.W.3d 82 (Tenn.2001), the Supreme Court
made the following pertinent statements:

               The Court of Appeals correctly held that the standard for appellate
               review of a trial court's child visitation order is controlled by our
               decision in Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn.1988).
               There, we noted that " 'the details of custody and visitation with
               children are peculiarly within the broad discretion of the trial judge.'"
               Id. at 429 (quoting Edwards v. Edwards, 501 S.W.2d 283, 291
               (Tenn.Ct.App.1973)). Accordingly, we held that a "trial court's
               decision [on visitation] will not ordinarily be reversed absent some
               abuse of that discretion." Id.
                       In reviewing the trial court's visitation order for an abuse of
               discretion, the child's welfare is given "paramount consideration," id.
               (quoting Luke v. Luke, 651 S.W.2d 219, 221 (Tenn.1983)), and "the
               right of the noncustodial parent to reasonable visitation is clearly
               favored." Id. Nevertheless, the noncustodial parent's visitation "may
               be limited, or eliminated, if there is definite evidence that to permit ...
               the right would jeopardize the child, in either a physical or moral
               sense." Id. (quoting Weaver v. Weaver, 37 Tenn.App. 195, 261
               S.W.2d 145, 148 (1953)).
                       Under the abuse of discretion standard, a trial court's ruling
               "will be upheld so long as reasonable minds can disagree as to
               propriety of the decision made." State v. Scott, 33 S.W.3d 746, 752
               (Tenn.2000); State v. Gilliland, 22 S.W.3d 266, 273 (Tenn.2000). A
               trial court abuses its discretion only when it "applie[s] an incorrect
               legal standard, or reache[s] a decision which is against logic or
               reasoning that cause[s] an injustice to the party complaining." State
               v. Shirley, 6 S.W.3d 243, 247 (Tenn.1999). The abuse of discretion
               standard does not permit the appellate court to substitute its judgment
               for that of the trial court. Myint v. Allstate Ins. Co., 970 S.W.2d 920,
               927 (Tenn.1998).

Eldridge, 42 S.W.3d at 85.

        We have reviewed the record with the above standard in mind and find that the Trial Court
properly considered the appropriate statutory factors found at T.C.A. 36-6-106, and that the evidence
does not preponderate against its ruling. The record demonstrates that the Court was faced with the
fortunate, yet difficult, prospect of deciding which of two competent and loving parents would be
the primary custodial parent. We, who cannot substitute our judgment for that of the Trial Court,
find no error in the Court’s decision that the Father should serve in that role. It is apparent that the
Court’s primary consideration was the best interest of Kendra.



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         The Mother also raises the question of whether the Trial Court erred in denying her motions
to alter or amend its judgment and for a new trial. The alleged grounds for these motions are as
follows: “the natural Mother has returned to Bradley County and from information and belief the
Father has been intentionally keeping the minor child away from the Mother.” Through these
motions the Mother requested the Court “to give more equal parenting time to the Mother and
require the minor child to spend the majority of time with the natural mother, due to the fact she was
the primary caretaker of the child from birth.” We find and hold that the disposition of these motions
is a matter which falls within the sound discretion of the Trial Court, and that it did not abuse its
discretion in denying them. We further find that this is an appropriate case for affirmance under
Rule 10 of this Court.

        For the foregoing reasons the judgment of the Trial Court is affirmed and the cause remanded
for collection of costs below. Costs of appeal are adjudged against the Appellant, Alica Delane
Rakestraw, and her surety.




                                               _________________________________________
                                               HOUSTON M. GODDARD, PRESIDING JUDGE




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