                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                             Assigned on Briefs June 8, 2012

          COURTNEY ANNE THOMPSON v. ROBERT HARRISON
                        THOMPSON, III

              Appeal from the General Sessions Court for Wilson County
                   No. 2010DC118       John Thomas Gwin, Judge


                No. M2011-02438-COA-R3-CV - Filed October 24, 2012


The trial court declared the parties divorced, reserving the designation of primary residential
parent for their nine month-old daughter. After a hearing the court adopted a parenting plan
that designated the father as the child’s primary residential parent. The mother argues on
appeal that the trial court applied an incorrect legal standard and made a decision contrary
to logic and reasoning. We disagree and hold that the evidence does not preponderate against
the trial court’s findings of fact, and that the court did not err in its application of the facts
to the relevant legal principles. Therefore, we affirm the trial court’s judgment.

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

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which A NDY D.
B ENNETT and R ICHARD H. D INKINS, JJ., joined.

Clayton Michael Cardwell, Nashville, Tennessee, for the appellant, Courtney Anne
Thompson.

Gloria Jean Evins, Lebanon, Tennessee, for the appellee, Robert Harrison Thompson, III.

                                           OPINION

                                       I. B ACKGROUND

        Robert Harrison Thompson, III (“Father”) and Courtney Anne Thompson (“Mother’)
married on December 14, 2002. Their only child, Grace Jennifer Thompson, was born on
November 23, 2009. In July of 2010, just eight months after their child was born, Mother
filed a complaint for divorce in the General Sessions Court of Wilson County, alleging that
the parties’ marriage was irretrievably broken because of irreconcilable differences. She
submitted a proposed temporary parenting plan that named her as Grace’s primary residential
parent, and she asked the court to order Father to pay child support and alimony. Father
moved out of the parties’ home in Mt. Juliet and into a residence in Franklin, near where he
worked.

       The trial court conducted a hearing on August 5, 2010, to consider Mother’s proposed
plan. After hearing testimony from the parties and in accordance with their stipulations, the
court declared the parties divorced in an order dated September 1, 2010, pursuant to its
authority under Tenn. Code Ann. § 36-4-129(a) and (b). The court also declared that it
approved the visitation provisions for Father in Mother’s temporary parenting plan, and it
apportioned the financial obligations of each party.1 The final designation of the primary
residential parent was reserved for further orders of the court. Mother was granted exclusive
possession of the marital home, and Father was ordered to pay the monthly mortgage.

        Under the temporary parenting plan, Father was awarded parenting time with Grace
every week from Thursday at 8:00 a.m. until Sunday at noon. The proof showed that both
parties had full-time jobs, so when Mother’s maternity leave ended, Grace was regularly left
in the care of others. The parties retained a baby sitter to take care of the child during
Mother’s time at work from Monday to Wednesday, with Father paying the babysitter’s
charge of $390 per month. Father’s parents took care of the child during his Thursday
workdays. Father was able to arrange his work schedule so he would have Fridays free to
spend with Grace.

        On January 18, 2011, Father filed an answer to Mother’s divorce complaint and asked
the trial court to name him as the child’s primary residential parent with standard visitation
for Mother. For her part, Mother filed a proposed parenting plan that changed Father’s
parenting to give him residential placement Thursday to Monday morning, every other week.

      The parties subsequently entered into an Agreed Order that settled all of their
remaining property issues. Among other things, the order recited that a sale of the marital
home was scheduled to close in two weeks and that the proceeds of the sale would be divided

        1
         Mother’s “Motion to Approve Temporary Parenting Plan and for Pendente Lite Child and Spousal
Support” asked for child support in the amount of $425 per month in accordance with the Child Support
Guidelines. The trial court’s order of September 1, 2010 does not contain any direct reference to child
support or alimony, but states that it “approves the visitation provisions contained in the Temporary
Parenting Plan attached hereto.” There is no parenting plan attached to the trial court’s order. The record
suggests, however, that Mother received regular child support during the period that she acted as the child’s
primary residential parent. The record also contains a court order dated May 16, 2011, by which Father was
ordered to pay spousal support of $275 per month.

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equally between the parties after payment of debts. The parties also waived all rights to
alimony, and they each agreed to pay their own attorney fees. With the entry of the Agreed
Order on August 1, 2011, the only unresolved issue was the parenting plan.

                          II. T HE F INAL P ARENTING H EARING

        The final hearing on the parenting plan was conducted over two full days in August,
2011. Mother’s testimony shows that she graduated from college with a degree in social
work and that her career in that field is very important to her. She worked for two years as
a foster care case worker in Texas before beginning her current employment at Court
Appointed Special Advocates of Davidson County (“CASA”), where she has worked for the
last four years.

        Mother was asked about her financial circumstances since the parties’ separation. She
testified that she found it difficult to pay all her expenses on a salary of $29,000 a year.
Mother was asked why she did not apply for a better-paying job with the State, which counsel
asserted had openings for applicants with Mother’s qualifications. Mother answered that
“they very well may, but that’s not necessarily where I would choose to work.” Mother also
testified that she has considered taking a second job to make ends meet. Father’s income and
expense statement showed that he earned about $83,000 per year at the time of trial. He
testified that his job with an engineering company requires him to work about 35 hours a
week and offers him a great deal of flexibility.

       Mother acknowledged that she had to ask Father to pay for some items for Grace’s
benefit and that Father had readily responded. She also testified that she sometimes went
without lunch so that there was enough money for lunch for Grace. Father testified that he
was worried that Grace was not getting enough to eat at Mother’s house, and he offered to
increase Mother’s weekly support, and Mother accepted his offer.

       Mother was asked about where she planned to live after the sale of the marital home
closed, if she were named Grace’s primary residential parent. She testified that she planned
to move to Bellevue, in Davidson County, because she has friends in the area, housing is
affordable, and it offers a shorter commute to her job in Nashville. She stated that she had
searched on-line for a daycare provider in Bellevue and had found one that she thought
would be suitable for Grace. She testified that the monthly cost was $923.

         When Father took the stand, he testified that he had made significant changes in his
life to accommodate Grace’s needs. As we noted above, he moved to Franklin when he first
separated from Mother. However, he found that maintaining his own separate residence,
paying the mortgage on the marital home, and meeting his other obligations put a strain on

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his finances. After three months he returned to Mt. Juliet and moved in with his parents.

       Photos of their home were entered into the record and showed that ample space is
dedicated to the child, and the house is certainly suitable for her. Father testified that he did
not plan to remain in his parents’ home forever, but hoped someday to be able to build his
own home, perhaps on another part of his parents’ fifteen acre property.

        Father was questioned about his relationship with Grace, and he detailed his
interactions with the child, including preparing breakfast for her, getting up in the middle of
the night to change her diaper, playing with her, reading to her, taking her swimming, to
church, and to the library. He testified that when he comes home from work, Grace runs up
to him excitedly, calling out “Daddy, Daddy,” and that she kisses him when he picks her up.
He further testified that she is much more reserved around Mother. The testimony of the
babysitter and of the paternal grandmother was consistent with Father’s testimony on that
issue. According to Father, he and Mother shared child rearing duties about equally prior to
their separation, but that since then he has spent far more time with the child than Mother.

       Grace’s babysitter, Cynthia Brown, testified that she began providing care for Grace
three days a week when the child was only about three months old. Ms. Brown also watches
her two grandchildren, and Grace has grown very close to them. Ms. Brown also testified
that she keeps a daily log of Grace’s activities and her development, and that she offered
copies of the log to both parents. Mother said she was not interested. Father accepted the
offer and said that he found the logs very useful.

        On rebuttal Mother contradicted Father’s account of several matters. She also
criticized what she saw as bias in the testimony of Ms. Brown and of the paternal
grandmother, and she stated that she believed they were conspiring to turn Grace against her
and to portray her in a bad light.

        The court’s decision was announced in a letter ruling, dated August 19, 2011, and
memorialized in a final order, filed on August 29, 2011. The court found that Mother and
Father were both fit parents and that they both loved their child, but that their personalities
were very different. The court then discussed in detail the testimony it heard in light of each
of the factors set out in Tenn. Code Ann. § 36-6-106(a) to consider in custody
determinations. The court concluded that those factors indicated that it was in the child’s
best interest that Father be named as her primary residential parent. The court accordingly
adopted Father’s proposed parenting plan, but with some specific changes that expanded
Mother’s residential schedule. Mother appealed.




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                             III. T HE S TANDARD OF R EVIEW

       The appellate courts have not been entirely consistent in their expressions of the
appropriate standard of review in this kind of case. In it latest statement of the standard in
2005, the Tennessee Supreme Court described it this way:

       [W]e now review the juvenile court’s decisions concerning comparative
       fitness, custody, visitation, and child support . . . . Our standard of review in
       child custody cases is de novo upon the record of the trial court with a
       presumption of correctness, unless the evidence preponderates otherwise. See
       Tenn. R. App. P. 13(d); Haas v. Knighton, 676 S.W.2d 554, 555 (Tenn.1984).

In re C.K.G., 73 S.W.3d 714, 732 (Tenn. 2005).

       That standard was the established standard for a number of years. For example, in the
frequently-cited case of Gaskill v. Gaskill, 936 S.W.2d 626 (Tenn. Ct. App. 1996) (perm.
app. den. Dec. 2, 1997), the court described the standard of review this way:

       Custody and visitation determinations often hinge on subtle factors, including
       the parents’ demeanor and credibility during the divorce proceedings
       themselves. Accordingly, appellate courts are reluctant to second-guess a trial
       court’s decisions. Trial courts must be able to exercise broad discretion in
       these matters, but they still must base their decisions on the proof and upon the
       appropriate application of the applicable principles of law. D v. K, 917 S.W.2d
       682, 685 (Tenn. Ct. App.1995). Thus, we review these decisions de novo on
       the record with a presumption that the trial court’s findings of fact are correct
       unless the evidence preponderates otherwise. Nichols v. Nichols, 792 S.W.2d
       at 716; Doles v. Doles, 848 S.W.2d 656, 661 (Tenn. Ct. App.1992).

936 S.W.2d at 631.

        As this quotation states, the Supreme Court had stated the standard of review in, inter
alia, the Nichols case:

       This is the standard by which we must abide in reviewing trial court judgments
       in child custody cases. The review of findings of fact shall be de novo on the
       record of the trial court, accompanied by a presumption of the correctness of
       the finding, unless the preponderance of the evidence is otherwise.




                                              -6-
Nichols v. Nichols, 792 S.W.2d 713, 716 (Tenn. 1990) (overruled on other grounds by Aaby
v. Strange, 924 S.W.2d 623 (Tenn. 1996) (citing Haas v. Knighton, 676 S.W.2d 554, 555
(Tenn. 1984)) and Tenn. R. App. P. 13(d)).

        All roads lead back to Haas v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984), and,
indeed, that is the opinion in which the Tennessee Supreme Court determined the appropriate
standard of review, holding that the adoption of Rule 13 of the Tennessee Rules of Appellate
Procedure had replaced the older standard for child custody cases, which had been review
of the record de novo without a presumption of correctness. Id. The Court specifically filed
the opinion in Haas “in order to clarify the scope of review in child custody cases.” Id. The
Court quoted, agreed with, and approved the holding in Bah v. Bah, 668 S.W.2d 663 (Tenn.
Ct. App. 1983), which stated:

        The matter is to be reviewed by us de novo with a presumption of correctness
        of the ruling of the trial judge. T.R.A.P. 13(d). We are not unmindful of
        Riddick v. Riddick, 497 S.W.2d 740 (Tenn. App.1973), which states that the
        presumption is eliminated in child custody cases and the review is strictly de
        novo. Id. at 742. However, that case was decided prior to the passage of the
        T.R.A.P. rules and no exception from the normal review in non-jury matters
        is made therein for custody cases.

        However, in 2001 the Supreme Court stated the standard differently, as follows:

        . . . 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)2 . 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]


        2
                Although we recognize that the general rule is that “the details of custody
                and visitation with children are peculiarly within the broad discretion of the
                trial judge,” Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn. App. 1973),
                and that the trial court's decision will not ordinarily be reversed absent
                some abuse of that discretion, “in reviewing child custody and visitation
                cases, we must remember that the welfare of the child has always been the
                paramount consideration” for the courts. Luke v. Luke, 651 S.W.2d 219,
                221 (Tenn.1983).

Suttles v. Suttles, 748 S.W.2d at 429.


                                                     -7-
       will not ordinarily be reversed absent some abuse of that discretion.” Id.
                                            ...

       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 v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001). The Court did not indicate that it
intended to change the earlier-expressed standard or that it was overruling Nichols or Haas.

       Both the custody statute and the parenting plan statute provide that the court’s
parenting decision is to be based on the child’s best interests. Tenn. Code Ann. § 36-6-
404(c)(3). In addition, the court is directed to adopt a residential schedule “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.”
Tenn. Code Ann. § 36-6-404(b).

        With those ultimate legal principles in mind, we will review the trial court’s findings
of fact de novo upon the record, accompanied by a presumption of correctness unless the
preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); In re C.K.G., 173
S.W.3d at 732. Once the factual findings are made, the trial court’s application of the facts
to the best interests standard involves the exercise of some discretion. Custody and visitation
or parenting plan determinations often hinge on subtle factors, including the parents’
demeanor and credibility during the divorce proceedings themselves. Gaskill, 936 S.W.2d
at 631. Although we accord trial courts broad discretion in these decisions, they must still
base their decisions on the proof and upon the appropriate application of the applicable
principles of law. Id. While appellate courts are reluctant to second-guess a trial court’s
determination regarding the details of a parenting arrangement, Parker v. Parker, 986 S.W.2d
557, 563 (Tenn.1999); Johnson v. Johnson, 169 S.W.3d 640, 645 (Tenn. Ct. App. 2004), we
will not apply the abuse of discretion standard.

                                        IV. A NALYSIS

       There are currently two different statutes setting out non-exclusive lists of factors for

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the trial court to apply to help it reach the goal of determining a child’s best interest.
Tennessee Code Annotated § 36-6-106 applies to “cases requiring the court to make a
custody determination. . . .” Tennessee Code Annotated § 36–6–404 requires that a
permanent parenting plan be incorporated into “any final decree or decree of modification
in an action for absolute divorce, legal separation, annulment, or separate maintenance
involving a minor child.” A parenting plan must include a residential schedule, which
designates in which parent’s home the child will reside on different days, and the court must
designate a “primary residential parent.” In determining the residential schedule, the court
is to consider a list of factors. Tenn. Code Ann. § 36-6-404(b).

       The trial court herein applied the factors in Tenn. Code Ann. § 36-6-106(a), which
apply to custody determinations.3 Although the parenting plan statutes are applicable herein,
the legislature’s list of factors at Tenn. Code Ann. § 36–6–404(b) for the court to consider
in determining a parenting plan and residential schedule are substantially similar to the
factors set out in Tenn. Code Ann. § 36–6–106(a), and both allow for consideration of any
other factors the court deems relevant. In this case, as in most cases, the analysis and the
result would be the same regardless of which set of factors is applied. To avoid confusion,
we will refer in our discussion to the same set of factors as was applied by the trial court.

       The trial court made thorough findings of fact in the context of the relevant statutory
factors. In considering “the love, affection and emotional ties existing between the parents
and caregivers and the child,” Tenn. Code Ann. § 36-6-106(a)(1), the trial court found that
while both parents might equally love their child, “Mother is not as openly affectionate


        3
          The factors set out in Tenn. Code Ann. § 36-6-106(a) are:
(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.

                                                     -9-
towards Grace. As a result, Grace exhibits more emotional ties to Father.” This finding is
supported by the testimony of Father, his mother, and Ms. Brown. Mother does not dispute
that Grace appears to be more loving with Father, but she suggest that this is attributable to
a conspiracy by those witnesses to turn the child against her. There is no evidence in the
record to support her theory. While the evidence does not preponderate against the court’s
findings of fact, we are not convinced that the amount of openly-expressed affection is
necessarily determinative of a child’s love or emotional tie with a parent.

        Another factor considered by the trial court is “[t]he importance of continuity in the
child’s life and the length of time the child has lived in a stable, satisfactory environment .
. . .” Tenn. Code Ann. § 36-6-106(a)(3). Discussing that factor, the trial court found that the
evidence clearly preponderates in Father’s favor. The proof shows that Father plans to
continue a schedule that has provided Grace with consistent and loving care provided by
himself, his mother, and Ms. Brown. Mother plans to move to Bellevue and enroll the child
in commercial daycare, “if the position is still open,” obviously a new environment for Grace.

       As to “[t]he stability of the family unit of the parents.” Tenn. Code Ann. § 36-6-
106(a)(4), the proof showed that Father’s parents have been married for 39 years, that they
have allowed Father to move back into their house, and that they have been instrumental in
the care of their granddaughter on a regular basis. The relationship between Father and his
parents is obviously close. In contrast, Mother is admittedly estranged from her own mother
and has very little contact with her father. Neither of her parents has taken care of Grace
overnight. The trial court found that this factor weighs heavily in Father’s favor.

        The trial court offered a more mixed analysis of another factor: “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)(10). The court stated that “[b]ut for
the Father’s proposed parenting plan the Court would find that these issues likewise
preponderate in favor of Father . . . . The Court finds that Mother’s proposed plan,
suggesting that Father have much more time with Grace, is indicative of a greater willingness
to facilitate a close relationship with Father.”

        The proof shows that Mother has always encouraged a strong relationship between
Grace and Father, and that she has never tried to withhold the child from him. She stated that
“I really would like for him to see her every day,” and she also testified that in case of an
emergency with Grace, her first call would be to Father, because “he’s her dad.” Father
likewise testified that he believed that Grace’s relationship with Mother was important, and
that he would foster and encourage that relationship and make sure Mother got to spend time

                                             -10-
with Grace. Father has also supported Mother’s participation in Grace’s life in a material
way, by making sure she has anything she needs to care for the child.

       Father’s proposed parenting plan, nonetheless, would have given Mother “standard
parenting time,” which means every other weekend from Friday to Sunday. It also included
only one week of uninterrupted parenting time during the summer, resulting in Mother
receiving only 84 days of parenting time each year. Under Mother’s proposed parenting
plan, she would have been named as the child’s primary residential parent, but Father would
have received quite a bit more parenting time than he suggested she receive.

       In addition to findings on specific factors, the trial court made some general findings
regarding the parents. Father was described by the court as a detail person with a controlling
personality who had made Grace the focus of his life, while Mother had chosen a lifestyle
that “while not directly harmful to Grace, clearly is less focused on the child when compared
to Father’s focus.” The court also found Father’s demeanor and credibility at trial to be good,
while Mother’s demeanor and credibility at trial were “troubling.”

       The trial court determined that it would be in the best interest of the child to name
Father as her primary residential parent, but that his proposed parenting schedule should be
modified to give Mother an amount of parenting time comparable to what she proposed that
Father receive. The court reasoned that such a schedule would give Mother time to deepen
her bond with her daughter. The parenting plan adopted by the court accordingly gives
Mother parenting time with the child on alternate weekends from Thursday until Monday,
as well as alternating holidays and two non-consecutive seven day periods of uninterrupted
parenting time during the summer. The court calculated that its plan would give Mother 131
parenting days with the child, while Father would have the child for 234 days.

         Based upon our review of the record, we hold that the evidence does not preponderate
against the trial court’s findings of fact, and we find no error in the trial court’s conclusion
that it is in the child’s best interest to designate Father as the primary residential parent, nor
in its adoption of a parenting plan that encourages a close and continuing parent-child
relationship between the child and both parents. We accordingly affirm the judgment.

                                               V.

       The judgment of the trial court is affirmed. We remand this case to the General
Sessions Court of Wilson County for any further proceedings necessary. Tax the costs on
appeal to the appellant, Courtney Anne Thompson.




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       ____________________________
       PATRICIA J. COTTRELL, JUDGE




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