                                                                                                          03/01/2018
                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                              Assigned on Briefs January 3, 2018

               BRENT DEWAYNE CARR v. KELLIE RENEA CARR

               Appeal from the General Sessions Court for Overton County
                        No. 2012-CV-65 Daryl A. Colson, Judge
                         ___________________________________

                               No. M2017-00556-COA-R3-CV
                           ___________________________________


This is an appeal in a divorce proceeding wherein the Mother of the parties’ child appeals
the trial court’s designation of Father as primary residential parent and designation of the
residential parenting schedule, contending that the trial court failed to properly consider
Father’s history of domestic violence and abuse against her. Upon our review we have
determined that the findings of fact and conclusions of law entered by the trial court did
not include a discussion of the impact of Tennessee Code Annotated section 36-6-406
on the finding of domestic violence; accordingly, we vacate the decision and remand the
case for the court to make appropriate findings in that regard.

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and KENNY W. ARMSTRONG, J., joined.

William A. Cameron, Cookeville, Tennessee, for the appellant, Kellie Renea Carr.

J. Steve Daniels, Livingston, Tennessee, for the appellee, Brent Dewayne Carr.

                                               OPINION

       Brent DeWayne Carr (“Father”) and Kellie Renea Carr (“Mother”) were married
on December 22, 2009; one child, Gunner, was born of the marriage in July 2011.1 The
parties separated on November 30, 2012, and Father filed a complaint for divorce on
December 6, 2012. On February 25, 2013, a document styled “Mediated Agreement” in
which the parties resolved all issues as to the division of marital property and debts was
1
  One other child was born to Mother while the parties were married; parenting time for that child is not at
issue in this appeal.
filed with the court; an agreed Parenting Plan Order was also filed, designating both
parties as Primary Residential Parents and granting each 182.5 days of residential
parenting time. There is no indication in the record that either document was made the
order of the court.

       The parties attempted to reconcile without success, and in August 2015 Mother
left the home; on August 21, Father filed an ex parte petition for a temporary order
seeking to restrain Mother “from interfering with his care, custody and control of
[Gunner] . . . pending a hearing on the Restraining Order or a full and final hearing as to
the divorce action.” The court issued the order, extending it on September 10 to allow
Father to secure service of the petition. Mother was served and filed her answer on
December 9, denying the salient allegations of the petition.

       Trial was held on December 20, 2016. At the conclusion of the trial, the court
declared the parties divorced and took matters related to the parenting plan under
advisement. On January 10, 2017, the court entered its Findings of Fact and Conclusions
of Law, and on February 10 entered the final order, incorporating the Findings and
Conclusions, naming Father as Primary Residential Parent and setting out the parenting
schedule for Gunner. Mother appeals the designation of Father as primary custodian of
Gunner, contending that the designation of Father as primary residential parent is
contrary to the preponderance of the evidence and that the court failed to “properly
consider the years of substantiated domestic abuse committed by [Father]” in creating the
residential parenting schedule.

                                  DISCUSSION

I. STANDARD OF REVIEW

        “Trial courts have broad discretion in devising permanent parenting plans and
designating the primary residential parent.” Burton v. Burton, No. E2007-02904-COA-
R3-CV, 2009 WL 302301, at *2 (Tenn. Ct. App. Feb. 9, 2009). Because decisions
regarding parental responsibility often hinge on subtle factors, such as the parent’s
demeanor and credibility during the proceedings, appellate courts are reluctant to second-
guess a trial court’s parenting schedule determinations. Adelsperger v. Adelsperger, 970
S.W.2d 482, 485 (Tenn. Ct. App. 1997). Consequently, a trial court’s decision regarding
a permanent parenting plan will be set aside only when it “falls outside the spectrum of
rulings that might reasonably result from an application of the correct legal standards to
the evidence found in the record.” Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001).
It is not the role of the appellate courts to “tweak [parenting plans] . . . in the hopes of
achieving a more reasonable result than the trial court.” Id.

       We review the trial court’s factual findings de novo upon the record, accompanied
by a presumption of correctness, unless the evidence preponderates otherwise. Tenn. R.
                                              2
App. P. 13(d). When the trial court makes no specific findings of fact, we review the
record to determine where the preponderance of the evidence lies. Ganzevoort v. Russell,
949 S.W.2d 293, 296 (Tenn. 1997). Accordingly, we will not disturb the parenting plan
fashioned by the trial court unless that decision is based on a material error of law or the
evidence preponderates against it. Adelsperger, 970 S.W.2d at 485.

II. ANALYSIS

       Tennessee Code Annotated section 36-6-404 requires the final order in a divorce
action to incorporate a permanent parenting plan for any minor children, defined 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….” Tenn. Code
Ann. § 36-6-402(3) (2017). The residential schedule is to include the designation of the
primary residential parent (section 36-6-402(5)), defined as the parent with whom the
child resides more than 50% of the time (section 36-6-402(4)), and in developing the
plan, the court “shall consider the factors at [section] 36-6-106(a)(1)-(15).”2 Id. § 36-6-
2
    Tennessee Code Annotated section 36-6-106(a) states:

          (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, the
          determination shall be made on the basis of the best interest of the child. In taking into
          account the child’s best interest, the court shall order a custody arrangement that permits
          both parents to enjoy the maximum participation possible in the life of the child
          consistent with the factors set out in this subsection (a), the location of the residences of
          the parents, the child’s need for stability and all other relevant factors. The court shall
          consider all relevant factors, including the following, where applicable:
                   (1) The strength, nature, and stability of the child’s relationship with each parent,
          including whether one (1) parent has performed the majority of parenting responsibilities
          relating to the daily needs of the child;
                   (2) Each parent’s or caregiver’s past and potential for future performance of
          parenting responsibilities, including the willingness and ability of each of the parents and
          caregivers to facilitate and encourage a close and continuing parent-child relationship
          between the child and both of the child’s parents, consistent with the best interest of the
          child. In determining the willingness of each of the parents and caregivers to facilitate
          and encourage a close and continuing parent-child relationship between the child and
          both of the child’s parents, the court shall consider the likelihood of each parent and
          caregiver to honor and facilitate court ordered parenting arrangements and rights, and the
          court shall further consider any history of either parent or any caregiver denying
          parenting time to either parent in violation of a court order;
                   (3) Refusal to attend a court ordered parent education seminar may be considered
          by the court as a lack of good faith effort in these proceedings;
                   (4) The disposition of each parent to provide the child with food, clothing,
          medical care, education and other necessary care;
                   (5) 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;
                   (6) The love, affection, and emotional ties existing between each parent and the
          child;
                                                        3
404(b). Pertinent to the issues in this appeal, Tennessee Code Annotated section 36-6-
406 provides that:

       (a) The permanent parenting plan and the mechanism for approval of the
       permanent parenting plan shall not utilize dispute resolution, and a parent’s
       residential time as provided in the permanent parenting plan or temporary
       parenting plan shall be limited if it is determined by the court, based upon a
       prior order or other reliable evidence, that a parent has engaged in any of
       the following conduct:
       ***
       (2) Physical or sexual abuse or a pattern of emotional abuse of the parent,
       child or of another person living with that child as defined in § 36-3-601.

       The trial court made the following findings of fact which are pertinent to both the
designation of Father as primary residential parent and to Father’s history of domestic
violence; they also inform our discussion of the issues raised by Mother:3



                (7) The emotional needs and developmental level of the child;
                (8) The moral, physical, mental and emotional fitness of each parent as it relates
       to their ability to parent the child. The court may order an examination of a party under
       Rule 35 of the Tennessee Rules of Civil Procedure and, if necessary for the conduct of
       the proceedings, order the disclosure of confidential mental health information of a party
       under § 33-3-105(3). The court order required by § 33-3-105(3) must contain a qualified
       protective order that limits the dissemination of confidential protected mental health
       information to the purpose of the litigation pending before the court and provides for the
       return or destruction of the confidential protected mental health information at the
       conclusion of the proceedings;
                (9) The child’s interaction and interrelationships with siblings, other relatives and
       step-relatives, and mentors, as well as the child’s involvement with the child’s physical
       surroundings, school, or other significant activities;
                (10) The importance of continuity in the child’s life and the length of time the
       child has lived in a stable, satisfactory environment;
                (11) Evidence of physical or emotional abuse to the child, to the other parent or
       to any other person. The court shall, where appropriate, refer any issues of abuse to
       juvenile court for further proceedings;
                (12) 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;
                (13) 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 preference of
       older children should normally be given greater weight than those of younger children;
                (14) Each parent's employment schedule, and the court may make
       accommodations consistent with those schedules; and
                (15) Any other factors deemed relevant by the court.
3
 While Mother cites other evidence in support of her arguments, she does not dispute that there is
material evidence in support of the court’s findings.
                                                     4
        1. The Court finds as a fact that this case consists of a marriage of
relatively short duration and of this marriage there was a child born, named
Gunner Mason Carr, date of birth, July 8, 2011.
        2. The Court finds as a fact that the parties experienced marital
difficulties during their marriage which resulted in the separation of the
parties and a subsequent attempt at reconciliation.
        3. The Court finds as a fact that the subsequent reconciliation was
not successful and that in August of 2015, Ms. Kellie Renea Carr left the
marital home and is currently residing in the Wilson County area of Middle
Tennessee.
        4. The Court finds as a fact that Gunner Mason Carr, date of birth,
July 8, 2011 has been in the care, custody and control of Brent Dwayne
Carr since August 2015.
        5. That Court finds as a fact that Kellie Renea Carr has not had
regular visits with the child since August, 2015 and the Court finds as a fact
that she has made no significant child support payments nor has she had
significant contact with the child, including only having one (1) visit and
only called one (1) time in the last year.
        6. The Court finds as a fact that the wife, Kellie Renea Carr admitted
to calling in prescriptions of Hydrocodone though she claims she did this
because they needed the money. There is some controversy between the
parties as to the nature and the extent of the purpose of calling in the
prescriptions, but the Court finds as a fact that Kellie Renea Carr admitted
to calling in the prescriptions, although the purpose of which is disputed.
        7. The Court finds as a fact that the child is currently in school and is
doing well in school as testified to by his teacher, Lisa Miller.
        8. The Court further finds as a fact that the father is involved in
school and participated in the Christmas party and that the child is in the
average range in school, however the child needs help with his phonics.
This is supported by the testimony of the child’s teacher, Lisa Miller.
        9. The Court finds as a fact that the child, Gunner Mason Carr is
involved in sports, as was testified to by his Coach, Timmy Ray, and that
the father is active in the sporting activities and is supportive.
        10. The Court finds as a fact that as a result of the significant contact
that the father has had with this child over the course of the past fifteen (15)
months that Gunner Mason Carr is significantly intertwined with the
community of Overton County and is involved in church activities at First
Baptist Church as testified to by the father, Brett Dwayne Carr and that
Gunner is doing well in school, as testified to by the child’s teacher and is
involved in sporting activities as testified to by the child’s coach, Timmy
Ray.


                                       5
                11. The Court finds as a fact that the mother, Kellie Renea Carr has
        had limited contact and involvement with this child for at least the past
        fifteen (15) months.
                12. The Court finds that Brent Dwayne Carr committed domestic
        violence against Kellie Renea Carr even though said violence was not
        reported to the authorities or the police. The Court has considered the
        testimony of Kellie Renea Carr which in and of itself would not be
        sufficient to support a finding of domestic abuse, however, the Court is of
        the opinion that the corroborative proof was sufficient and adequate by a
        preponderance of the evidence. Specifically, the Court gives credibility to
        the testimony of Jennifer McKee, who is a teacher at Head Start, who saw
        multiple bruises on Kellie Renea Carr. The testimony of Tammy Wells,
        who likewise works at the Head Start, who saw a black eye and a busted lip
        on the mother and she testified that the mother seemed afraid. The
        testimony of Christy Peek who saw bruising and black eyes on Kellie
        Renea Carr. The testimony of Christy Asburn, who is a receptionist, who
        saw multiple bruises on Kellie Carr. The testimony of Catrina Carr, who is
        a former babysitter, who testified she saw bruises on Kellie Renea Carr and
        that she had a black eye purportedly at the hands of her husband. The Court
        has great concern as to the issue of domestic violence and the Court finds
        that Brent Dwayne Carr did in fact commit domestic violence against
        Kellie Renea Carr.
                13. The Court finds as a fact that Kellie Renea Carr engaged in
        conduct which placed this particular child in danger, or risk of serious
        danger, including the risk of death in that she left this child in a hot vehicle
        in 2012. The testimony was convincing to the Court that it was during the
        hot time of the year, that the child was left in car because he was “napping”.
        The child was covered in sweat and the windows were up and according to
        the testimony of Teresa Carr and Marty Carr who corroborated this incident
        they were in fear for the child’s safety. It must be noted that Teresa Carr
        nor Marty Carr did not make any reports to the Department of Children’s
        Services regarding this matter, but none the less, the Court finds their
        testimony to be believable and credible and the Court finds that this event
        did, in fact, occur. The Court finds as a find of fact that this placed the
        child, Gunner Mason Carr, in serious risk of harm.[4]
                14. The Court finds as a fact that Kellie Renea Carr is currently
        living with another man, named Gary Wells. The Court finds as a fact that
        Gary Wells has a felonious record consisting of forgery and perhaps
        custodial interference.

4
  Father’s parents testified regarding this matter; contrary to the finding, however, they testified
that Mother’s other child was the one left in the car.

                                                     6
                  15. The Court finds as a fact that that those felony convictions are of
          a property nature and are not the type of felony that would pose a risk of
          harm to the child directly other to affect the morality and the moral
          environment of the child should the child be permitted to be around Gary
          Wells.
                  16. The Court finds as a fact that Kellie Renea Carr did not keep her
          house organized, tidy or clean and that the photographs that we entered into
          trial show a house that was in disarray and perhaps was unsanitary as
          testified to by Marty Carr and Teresa Carr who indicated that there was dog
          feces in the home and thus the Court finds that Ms. Kellie Renea Carr did
          not keep a stable and suitable living environment that would be in the best
          interest of her minor child.

      In its conclusions of law, the trial court stated that it was “consider[ing] each and
every factor contained in TCA § 36-6-106 (a)(1)-(10)”5; the court then proceeded to
5
    The factors in the previous version of section 36-6-106(a) (2014) are:

          (1) The love, affection and emotional ties existing between the parents or caregivers and
          the child;
          (2) The disposition of the parents or caregivers to provide the child with food, clothing,
          medical care, education and other necessary care and the degree to which a parent or
          caregiver 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
          subdivision (a)(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 nonperpetrating
          parent or caregiver has relocated in order to flee the perpetrating parent, that the
          relocation shall not weigh against an award of custody;
          (4) The stability of the family unit of the parents or caregivers;
          (5) The mental and physical health of the parents or caregivers. The court may, when it
          deems appropriate, order an examination of a party pursuant to Rule 35 of the Tennessee
          Rules of Civil Procedure and, if necessary for the conduct of the proceedings, order the
          disclosure of confidential mental health information of a party pursuant to § 33-3-105(3).
          The court order required by § 33-3-105(3) shall contain a qualified protective order that,
          at a minimum, expressly limits the dissemination of confidential protected mental health
          information for the purpose of the litigation pending before the court and provides for the
          return or destruction of the confidential protected mental health information at the
          conclusion of the proceedings;
          (6) The home, school and community record of the child;
          (7)(A) The reasonable preference of the child, if twelve (12) years of age or older;
          (B) The court may hear the preference of a younger child on 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, or child sexual abuse,
          as defined in § 37-1-602, 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
                                                       7
discuss the evidence and reach a conclusion regarding the parent in whose favor a
particular factor weighed. The version of the statute used by the court contained ten
factors; this statute, however, was repealed by Acts 2014, chapter 617, section 4, and
replaced by the fifteen factors quoted in footnote 2, above, effective July 1, 2014.
Mother does not contend that the court erred in applying an incorrect version of the
statute and in her brief on appeal she discusses the fifteen factors in the current version;
in his brief Father details the evidence which supports the conclusions reached by the
court. Because we resolve this case as a matter of law, we do not deem it necessary to
review the record to determine where the preponderance of the evidence lies relative to
the factors not discussed by the trial court. See Ganzevoort, 949 S.W.2d at 296.

       The trial court held that six of the ten factors weighed in favor of father, two were
weighed equally, and one was not applicable; the factor that is the basis of Mother’s
appeal is the court’s holding relative to factor 8, which is supported by factual finding 12,
quoted above:

       When considering factor eight of physical and mental abuse to the child or
       the other parent; the Court does have concerns about Brent Dwayne Carr.
       The Court has previously made a finding of fact that Mr. Brent Carr
       engaged in physical violence against Kellie Renea Carr. The Court
       struggled greatly with this issue as the Court finds that Mr. Carr was
       abusive to his wife. The Court has great concern that this young child will
       be placed with a man that has engaged in physical abuse of his wife. In
       conclusion with struggling with this issue, the Court has reviewed the
       totality of the best interest and the factors in this case and finds that this
       does not overcome the court's opinion that the child be placed with the
       father. There has been no evidence presented that Mr. Carr has been


       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 to the
       evidence. 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 or caregiver and the person's interactions with the child; and
       (10) Each parent’s or caregiver’s past and potential for future performance of parenting
       responsibilities, including the willingness and ability of each of the parents and
       caregivers to facilitate and encourage a close and continuing parent-child relationship
       between the child and both of the child’s parents, consistent with the best interest of the
       child. In determining the willingness of each of the parents and caregivers to facilitate
       and encourage a close and continuing parent-child relationship between the child and
       both of the child’s parents, the court shall consider the likelihood of each parent and
       caregiver to honor and facilitate court ordered parenting arrangements and rights, and the
       court shall further consider any history of either parent or any caregiver denying
       parenting time to either parent in violation of a court order.

                                                    8
          abusive to this child. The Court finds that the abuse was directed toward the
          former spouse and that is concerning. In reviewing the totality of the
          interest set forth in this statute and the best interest of the child the Court
          gives that weight, but does not feel that it is compelling to overcome the
          rest of the factors in this chapter.

Father does not contest the factual finding that he committed domestic violence against
Mother. Mother argues that designating Father as primary residential parent and the
allocation of residential parenting time runs counter to this holding and the evidence upon
which it is based.

       Mother contends that she should have been named primary residential parent and
Father’s parenting time should have been reduced due to his physical and verbal abuse;
that the trial court overlooked the efforts Mother has taken to get her life back together
after years of abuse; and that the court failed to properly assess Father’s fitness to raise
Gunner in light of his history of abuse.

       The trial court found that Father committed domestic violence against Mother, a
finding with which the court “struggled greatly” and which caused the court “great
concern.” From the record, however, we cannot determine the extent to which the court
took the requirement of Tennessee Code Annotated section 36-6-406(a)(2) into account
in designating Father as primary residential parent and in developing the residential
parenting time schedule.6 Moreover, it does not appear from either the court’s findings or
its conclusions that the court considered the testimony of Dr. Tara LeMaire, a physician
for whom Mother worked, who observed and treated Mother, and opined as to the effect
of Father’s abuse on Mother.7 In addition to invoking section 36-6-406(a)(2), Dr.

6
 Under the parenting plan adopted by the court, Mother has 96 days of residential parenting time per year
and Father has 269 days.
7
    With respect to her observations of Father’s behavior Dr. LeMaire testified:

                   Q. Okay. Was that consistent with what you saw happening, the dynamics?
                   A. And that was also consistent with her concerns.
                   Q. Okay. Go ahead.
                   A. His interactions with her and the children were always consistent with
          battered wife syndrome. She was fearful of him. Everything she did and said were in an
          effort not to invoke anger. Because he would be angry. He would do this, or he would
          do that, or he would hit her. And on one occasion when we went out to lunch, he showed
          up where we were. He was waiting for us outside, followed us to lunch and sat and
          watched us while we ate.
                   Q. Is that typical, in your opinion, of battered wife syndrome and controlling
          behavior?
                   A. It is. It is. It is. Everything he ever did was very typical of everything she
          reported.
                                                      9
LeMaire’s testimony places some of Mother’s testimony regarding her fear of Father, her
leaving the family home and establishing a new home in a different county, and her
reluctance to do anything that would incite Father in a different context; this was not
discussed by the court.

       Tennessee Code Annotated section 36-6-406(a)(2) embodies a statutory mandate.
See In re Emma E., No. M2008-02212-COA-R3-JV, 2010 WL 565630, at *7 (Tenn. Ct.
App. Feb. 17, 2010) (stating that, pursuant to the statute, “[i]f the court determined that
Father physically, sexually, or emotionally abused Mother, it would have been bound to
limit Father’s parenting time to some degree.”); see also Jacobsen v. Jacobsen, No.
M2012-01845-COA-R3-CV, 2013 WL 1400618, *4 (Tenn. Ct. App. April 5, 2013). The
decision to name Father as primary residential parent and to adopt the residential
parenting schedule is also affected by the court’s findings relative to certain behavior of
Mother, particularly her home environment and an incident wherein the court found
Mother put Gunner in danger by leaving him in a hot car.8 In short, there is also evidence
which might invoke provisions of Tennessee Code Annotated section 36-6-406(d).9


                  Q. Okay. Okay. Did you make a diagnosis that she was suffering from battered
          wife syndrome?
                  A. I don’t believe that syndrome was in my diagnosis, but I do believe I had
          noted in my record that I believed she was the victim of the abuse.
                  Q. Right. Okay.
                  A. I did not go so far as to put “battered wife syndrome” in my diagnosis
          because I felt like that was a psychological diagnosis. And I’m not a psychiatrist.
8
 This finding is not supported by the evidence, in that Father’s parents, who testified about the incident,
both stated that it involved Mother’s daughter, not Gunner.

9
    Tennessee Code Annotated section 36-6-406(d) states:

          (d) A parent’s involvement or conduct may have an adverse effect on the child’s best
          interest, and the court may preclude or limit any provisions of a parenting plan, if any of
          the following limiting factors are found to exist after a hearing:
          (1) A parent’s neglect or substantial nonperformance of parenting responsibilities;
          (2) An emotional or physical impairment that interferes with the parent's performance of
          parenting responsibilities as defined in § 36-6-402;
          (3) An impairment resulting from drug, alcohol, or other substance abuse that interferes
          with the performance of parenting responsibilities;
          (4) The absence or substantial impairment of emotional ties between the parent and the
          child;
          (5) The abusive use of conflict by the parent that creates the danger of damage to the
          child's psychological development;
          (6) A parent has withheld from the other parent access to the child for a protracted period
          without good cause;
          (7) A parent’s criminal convictions as they relate to such parent’s ability to parent or to
          the welfare of the child; or
                                                      10
       A trial court abuses its discretion when it fails to consider the applicable law and
relevant facts in reaching its decision. Konvalinka v. Chattanooga-Hamilton Cnty. Hosp.
Auth. 249 S.W.3d 346, 358 (Tenn. 2008). An abuse of discretion occurs if a trial court
causes an injustice to a party by “(1) applying an incorrect legal standard, (2) reaching an
illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous
assessment of the evidence.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn.
2010).10 The Beecher Court directs appellate courts to review a lower court’s
discretionary decision to determine:

          (1) whether the factual basis for the decision is properly supported by
          evidence in the record, (2) whether the lower court properly identified and
          applied the most appropriate legal principles applicable to the decision, and
          (3) whether the lower court’s decision was within the range of acceptable
          alternative dispositions.

Id.

       Our ability to review the decisions to designate Father as primary residential
parent and to adopt the parenting plan, affording the trial court the deference called for by
the standard of review, is limited because the court did not identify and apply the
appropriate legal principle, specifically Tennessee Code Annotated section 36-6-406, in
making the decisions. Consistent with our standard of review, this a determination more
appropriately made by the trial court.




          (8) Such other factors or conduct as the court expressly finds adverse to the best interests
          of the child.

10
     The Supreme Court described the abuse of discretion standard of review thusly:

          The abuse of discretion standard of review envisions a less rigorous review of the lower
          court’s decision and a decreased likelihood that the decision will be reversed on appeal.
          Beard v. Bd. of Prof’l Responsibility, 288 S.W.3d 838, 860 (Tenn. 2009); State ex rel.
          Jones v. Looper, 86 S.W.3d 189, 193 (Tenn. Ct. App. 2000). It reflects an awareness that
          the decision being reviewed involved a choice among several acceptable alternatives.
          Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 708 (Tenn. Ct. App. 1999). Thus, it does not
          permit reviewing courts to second-guess the court below, White v. Vanderbilt Univ., 21
          S.W.3d 215, 223 (Tenn. Ct. App. 1999), or to substitute their discretion for the lower
          court’s, Henry v. Goins, 104 S.W.3d 475, 479 (Tenn. 2003); Myint v. Allstate Ins. Co.,
          970 S.W.2d 920, 927 (Tenn. 1998). The abuse of discretion standard of review does not,
          however, immunize a lower court’s decision from any meaningful appellate scrutiny.
          Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 211 (Tenn. Ct. App. 2002).

Beecher, 312 S.W.3d at 524 (Tenn. 2010).
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                                    CONCLUSION

       For the foregoing reasons, we vacate the decision and remand the case for the trial
court to make appropriate findings of fact and conclusions of law as to the impact of
section 36-6-406 on the evidence presented.




                                                RICHARD H. DINKINS, JUDGE




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