                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                         Assigned on Briefs, July 22, 2009

IN RE: T.H.; A Child Under Eighteen (18) Years of Age; KAREN RILEY v.
                       FRANKIE SUMMEOUR

                   Direct Appeal from the Circuit Court for Knox County
                          No. 107071      Hon. Bill Swann, Judge



                 No. E2009-00655-COA-R3-JV - FILED AUGUST 27, 2009



This case arose as a dispute over the custody of the minor child between the paternal aunt of the
child and the maternal great aunt of the child. Following an evidentiary hearing, the Trial Court
eventually awarded custody of the child to Karen Riley. Frankie Summeour has appealed. We
affirm the Judgment of the Trial Court.


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


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the Court, in which CHARLES D. SUSANO ,
JR., J., and D. MICHAEL SWINEY , J., joined.


Ben H. Houston, II., Knoxville, Tennessee, for appellant, Frankie Summeour, the Guardian Ad
Litem, Jennifer Bjornstad, and the Minor Child's mother, Nashira Sherrod.



                                            OPINION


               This case originated in the Knox County Juvenile Court, wherein the mother, Nashira
Sherrod, filed for legal custody of her child, T.H., after T.H.’s father and legal custodian passed
away. A guardian ad litem was appointed for the child, and the mother was granted temporary
custody. Karen Riley, the paternal aunt, then filed a petition for custody, asserting the mother had
mental health issues, and temporary custody was granted to Ms. Riley.

               Frankie Summeour then filed a petition for custody of the child, asserting that Ms.
Riley had been leaving town to take care of business in Florida, and that she left the child with
different people. Ms. Summeour stated that she was the child’s maternal great-aunt, and at a hearing
Ms. Riley was given temporary legal custody of the child pending further hearing, provided that she
not take the child more than 100 miles away, and the mother was granted visitation. Physical custody
was split between Ms. Riley and Ms. Summeour, with Ms. Riley having custody from June 1 to July
12 (the date of the hearing), and Ms. Summeour having custody from April 28 to June 1.

                The guardian ad litem then filed a Petition for Contempt, asking the Court to find Ms.
Riley in contempt for not allowing the mother to visit with the child, and for failing to allow the
guardian to interview the child. Ms. Riley was ordered to bring the child to Juvenile Court on a
certain date so that the guardian could meet with the child. Riley failed to appear on that date, and
the Court entered another Order finding that Ms. Riley had removed the child to Florida in violation
of the Court’s prior orders and had enrolled her in school there. The Court changed custody from
Ms. Riley to Ms. Summeour, and ordered that the child be given to Ms. Summeour immediately.

                 A hearing was held on March 30, 2007, and the child was found to be dependent and
neglected, and custody was awarded to Ms. Summeour. The Court entered a Custody Order, finding
that Ms. Riley had misled the Court in that she never really intended to move to Tennessee, and Ms.
Riley would not return the child from Florida for almost three months despite numerous orders
telling her to do so. Also, that Ms. Riley took the child to Florida in violation of the Court’s orders,
and the Court concluded that the child’s mother, half-siblings, paternal grandmother, and many
relatives lived in Knoxville, and that the child should remain in Knoxville. The Court found that it
was in the child's best interest to remain with Ms. Summeour, and that her mother and other relatives
would have visitation. Ms. Riley appealed the decision.

                A hearing date was set in Circuit Court, and the Court held the hearing on September
29, 2008, and stated the mother was present, and that she stipulated that the child was dependent and
neglected due to the death of her father and the mother’s inability to care for her. The Court found
that custody of the child should be transferred to Ms. Riley, with certain conditions, and that the
parties stipulated that several witnesses would testify that Ms. Riley was of good character and that
the child enjoyed a good relationship with her. The Court stated that its decision was based upon
Tenn. Code Ann. §34-2-103 (priority of persons to be considered), and Tenn. Code Ann. §36-6-106
(child custody), and that factors 1, 2, 3, 6, 9, & 10 of Tenn. Code Ann. §36-6-106 were relevant.

                The Court found that Ms. Riley’s plan to enroll the child in private school was
impressive, and that her children, ages 17 and 13, were excelling, and both enjoyed a close
relationship with the child. The Court found that Ms. Summeour was always viewed by the family
as a blood relative even though she was not, and that she was a good person, a person of honor, and
had Tamia’s best interests at heart. The Court found that Ms. Riley was a remarkable person, having
excelled at sports, having almost completed a BS degree, having consistent positive contact with the
mother, and that she also had Tamia’s best interests at heart. The Court found that Ms. Riley’s home
was excellent, but that Ms. Summeour would retain temporary custody of the child, and that if Ms.
Riley accomplished certain things that she promised the Court she would do, custody would be


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transferred to her and she and the child could move to Florida. A later hearing was held before the
Court, and at that time the Court found that the conditions imposed had been met and the Court
ordered that custody would be vested in Ms. Riley. Ms. Summeour has appealed.

              A Statement of Evidence, which was approved by the Trial Judge, was filed pursuant
to Tenn. R. App. P. Rule 24.

               The issues on appeal are:

               1.      Did the Trial Court err by relying on Tenn. Code Ann. §34-2-103 pertaining
                       to the priority of persons to be considered for appointment as the child’s
                       guardian where guardianship was never an issue before the Court?

               2.      Did the Trial Court err by failing to engage in a meaningful comparative
                       fitness analysis?

               3.      Did the Trial Court err by awarding custody of the minor child to Karen Riley
                       where the preponderance of the evidence clearly demonstrated that an award
                       of custody to Ms. Summerour was in the minor child’s best interests?

               In this case, the Trial Court determined that custody of the child should be placed with
Ms. Riley, based on certain factors contained in Tenn. Code Ann. §36-6-106. Tenn. Code Ann. §36-
6-106 states that the court shall consider all relevant factors including the following:

               (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;

               (6) The home, school and community record of the child;


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               (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 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 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.

                The trial court found that factors 1, 2, 3, 6, 9, and 10 were relevant. Factor 1 is the
love, affection and emotional ties existing between the child and the potential custodian, and the
proof showed that the child had close ties with both Ms. Riley and Ms. Summeour. Factor 2 deals
with the disposition of either caregiver to provide for the child’s needs, and once again, both parties
appeared able to provide for the child’s needs. The Court placed significance and emphasis on the
fact that Ms. Riley had enrolled the child in private school, but the proof was that also when living
with Ms. Summeour, the child was attending a magnet school. Both parties provided for the child’s
basic needs of food, clothing, etc., and both saw to it that the child received counseling.

                Factor 3 deals with continuity and stability, and while the child had lived with both
parties for periods of time, at the time of the hearing, the child had been living with Ms. Summeour
for nearly two years, so this factor would favor Ms. Summeour. Factor 4 concerns the stability of
the family unit, and factor 5 deals with the mental and physical health of the potential custodians.
The proof on these factors would not militate toward a finding for either party, as they would
basically “weigh out” the same. Factor 6 concerns the home, school, and community record of the
child, and while the Trial Court found this factor to be significant, there does not appear to be any
evidence regarding this. There were no report cards or other such indicia introduced, and both


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parties had a letter from a counselor who had dealt with the child and who opined that the child
should remain where she was. Factor 7 deals with the child’s preference, but the child did not
express a preference in this case, and Factor 8 deals with abuse, and there was no proof of the same
in this case. Factor 9 concerns the character of other people who live in the home, and the Court
found this factor to be significant, but the only proof on this issue was that Ms. Riley’s children who
lived in her home were excellent students, and that her son was in the military, had a security
clearance. Factor 10 deals with the potential custodian’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”. The proof in this regard was that both potential custodians had
performed well when they had custody of the child, although the proof showed that the child
probably had greater opportunities with Ms. Riley. Ms. Summeour had encouraged the child’s
relationship with her biological mother, as had Ms. Riley, as evidenced by her willingness to
transport the mother to Florida to see the child and to provide other means of communication.

              The Court found that Ms. Riley was favored in the above analysis, and the evidence
does not preponderate against this finding. Tenn. R. App. P. 13(d). As this Court has previously
explained with regard to custody determinations:

               Our review is de novo upon the record of the proceedings below. However, that
               record comes to us with a presumption that the trial judge's factual findings are
               correct. Tenn. R. App. P. 13(d). We must honor this presumption unless we find that
               the evidence preponderates against those findings. There is no presumption of
               correctness with regard to the trial court's conclusions on matters of law, or to its
               application of law to the facts, or to “conclusions that are based on undisputed facts”.

               “[N]either trial nor appellate judges have any responsibility greater than to attempt
               to correctly adjudicate child custody disputes.” “However, ... the trial judge, not the
               appellate court, has the opportunity to observe the witnesses. All we can review is the
               cold printed word and the exhibits.” Therefore, a trial court has broad discretion
               regarding a custody determination. We will not disturb such a determination unless
               the record reflects an abuse of that discretion.

Massey-Holt v. Holt, 255 S.W.3d 603 (Tenn. Ct. App. 2007)(citations omitted).

                The Trial Court found that several witnesses opined that Ms. Riley was of good
character and enjoyed a good relationship with the child. The Court found that Ms. Riley’s plan to
enroll the child in private school was “most impressive”, and that Ms. Riley’s own children were
excelling. The Court found that Ms. Riley was a “remarkable person”, having excelled at sports and
having almost completed a BS degree. The Court found that Ms. Riley had the child’s best interests
at heart, and was supportive of the child having consistent positive contact with her mother. Also
that Ms. Riley’s home conditions were excellent. The evidence does not preponderate against these



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findings.1
                As our Supreme Court has stated:

                Under the abuse of discretion standard, a trial court’s ruling “will be upheld so long
                as reasonable minds can disagree as to the propriety of the decision made.” 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.” The abuse of discretion standard does not permit the
                appellate court to substitute its judgment for that of the trial court.

Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)(citations omitted). The Court went on to
explain:

                Appellate courts correct errors. When no error in the trial court’s ruling is evident
                from the record, the trial court’s ruling must stand. This maxim has special
                significance in cases reviewed under the abuse of discretion standard. The abuse of
                discretion standard recognizes that the trial court is in a better position than the
                appellate court to make certain judgments. The abuse of discretion standard does not
                require a trial court to render an ideal order, even in matters involving visitation, to
                withstand reversal. Reversal should not result simply because the appellate court
                found a “better” resolution. An abuse of discretion can be found only when the trial
                court’s ruling 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.

Id. at 88 (citations omitted).

               Appellant argues the Trial Court erred in considering Tenn. Code Ann. §34-2-103 in
this case, which is the statute pertaining to the priority of persons to be considered in guardianship
proceedings. Appellant argues that since this statute is only supposed to be invoked as a “tie breaker”
when both potential guardians are essentially equal in the best interests determination, then the Court
must have felt that Ms. Riley and Ms. Summeour were equal and thus needed to use this statute to
decide the issue. See In re Horner, 2003 WL 1452997 (Tenn. Ct. App. Mar. 21, 2003).

                 The Court’s opinion, however, demonstrates that the Trial Court felt that Ms. Riley
was the obvious choice with regard to a best interests determination. The Trial Court lauded her
performance, and found her to be “remarkable”, with “excellent” home conditions and parenting
abilities. The Court clearly ruled that Ms. Riley was favored in the best interests analysis, and thus
clearly did not find the two parties to be essentially equal nor use the priority statute as a tie breaker.


        1
          Review in this case is somewhat limited by the fact that no transcript was provided - the
statement of the evidence was approved by the court, and does not provide a basis for holding the
evidence preponderates against the Trial Court’s findings, or that the Trial Court abused its
discretion.

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While neither party asked for guardianship explicitly, it was harmless error for the Trial Court to
consider the statute in its analysis, as the Trial Court properly conducted a best interests analysis and
found Ms. Riley to be the clear choice. This issue is without merit.

               We affirm the Judgment of the Trial Court and remand, with the cost of the appeal
assessed to Frankie Summeour.




                                                        ______________________________
                                                        HERSCHEL PICKENS FRANKS, P.J.




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