Opinion
No. M2006-01134-COA-R3-CV.
February 8, 2007 Session.
Filed April 25, 2007.
Appeal from the Circuit Court for Davidson County No. 05D-939 Jack Norman, Jr., Substitute Judge.
Judgment of the Circuit Court Affirmed and RemandedCynthia J. Bohn, Nashville, Tennessee, for the appellant, Leilani K. Eastman.
C. LeAnn Smith, Nashville, Tennessee, for the appellee, Lance Eastman.
WILLIAM B. CAIN, J., delivered the opinion of the court, in which PATRICIA J. COTTRELL and FRANK G. CLEMENT, JR., JJ., joined.
OPINION
The trial court awarded Husband a divorce based on Wife's inappropriate marital conduct. Having found both parents equally fit to care for the parties' minor daughter, the court created a parenting plan providing for an alternating six month schedule of equal residential placement and designated both parties as primary residential parent. Wife appeals the trial court's custody determination and parenting plan, arguing that the trial court erred by (1) failing to consider the factors in Tenn. Code Ann. 36-6-404(b); (2) failing to properly weigh the relevant factors in its comparative fitness analysis; and (3) weighing her infidelity in the comparative fitness analysis. We affirm the trial court's parenting plan providing for an alternating six month schedule of equal residential placement, however, we remand the matter to the trial court in order to designate a single primary residential parent.
Mr. Lance Eastman and Mrs. Leilani Eastman were married on June 25, 1994, and one child was born from the marriage. On March 10, 2005, Mrs. Eastman filed a complaint for divorce. The trial court judge, Honorable Carol Soloman, granted Mr. Eastman a divorce on July 8, 2005, on the grounds of inappropriate marital conduct in that Mrs. Eastman was pregnant with a third party's child. The court however reserved the issues of permanent custody of the parties' minor child and the division of the marital estate pending a final hearing.
On February 22, 2006, Mrs. Eastman filed a motion requesting a new trial arguing that the trial court applied improper standards in its comparative fitness analysis and that the proof preponderated against the trial court's division of parenting time. On May 17, 2006, the trial court denied Mrs. Eastman's motion. Mrs. Eastman appeals to this Court arguing that the trial court erred by (1) failing to consider the factors in Tenn. Code Ann. § 36-6-404(b); (2) failing to properly weigh the relevant factors in its comparative fitness analysis; and (3) weighing her infidelity in the comparative fitness analysis.
We review findings of fact in a child custody case de novo upon the record with a presumption of correctness of the findings, unless the evidence preponderates otherwise. Tenn.R.App.P. 13(d); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). "Custody and visitation determinations often hinge on subtle factors, including the parents' demeanor and credibility during the divorce proceedings themselves." Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn.Ct.App. 1996). Therefore, "the details of custody of and visitation with children are peculiarly within the broad discretion of the Trial Judge whose decisions are rarely disturbed." Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn.Ct.App. 1973).
Mrs. Eastman first contends that the trial court erred in its comparative fitness analysis by failing to consider any of the factors listed in Tenn. Code Ann. § 36-6-404(b), which the court is required to examine in creating a parenting plan. Although we can find nothing in the record evidencing the court's specific reliance on Tenn. Code Ann. § 36-6-404(b), a trial court is not required to list every applicable factor along with a discussion of how that particular factor impacted the court's custody determination when issuing its judgment. Darvarmanesh v. Gharacholou, No. M2004-00262-COA-R3-CV, 2005 WL 1684050, at *4 (Tenn.Ct.App. Jul. 19, 2005). Furthermore, the factors listed in Tenn. Code Ann. § 36-6-404(b) are substantially similar to the factors provided in Tenn. Code Ann. § 36-6-106(a). Tenn. Code Ann. § 36-6-404(b) states:
(b) Any permanent parenting plan shall include a residential schedule as defined in § 36-6-402(3). The court shall make residential provisions for each child, 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. The child's residential schedule shall be consistent with this part. If the limitations of § 36-6-406 are not dispositive of the child's residential schedule, the court shall consider the following factors:
(1) The parent's ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society that the child faces as an adult;
(2) The relative strength, nature, and stability of the child's relationship with each parent, including whether a parent has taken greater responsibility for performing parenting responsibilities relating to the daily needs of the child;
(3) 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 interests of the child;
4) Willful refusal to attend a court-ordered parent education seminar may be considered by the court as evidence of that parent's lack of good faith in these proceedings;
(5) The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;
(6) 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;
(7) The love, affection, and emotional ties existing between each parent and the child;
(8) The emotional needs and developmental level of the child;
(9) The character and physical and emotional fitness of each parent as it relates to each parent's ability to parent or the welfare of the child;
(10) The child's interaction and interrelationships with siblings and with significant adults, as well as the child's involvement with the child's physical surroundings, school, or other significant activities;
(11) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment;
(12) Evidence of physical or emotional abuse to the child, to the other parent or to any other person;
(13) 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;
(14) 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;
(15) Each parent's employment schedule, and the court may make accommodations consistent with those schedules; and
(16) Any other factors deemed relevant by the court.
While Tenn. Code Ann. § 36-6-106(a) similarly provides:
(a) In a suit for annulment, divorce, separate maintenance, or in any other proceeding requiring the court to make a custody determination regarding a minor child, such determination shall be made upon the basis of the best interest of the child. The court shall consider all relevant factors including the following where applicable:
(1) The love, affection and emotional ties existing between the parents and child;
(2) The disposition of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver;
(3) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment; provided, that where there is a finding, under § 36-6-106(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 non-perpetrating parent has relocated in order to flee the perpetrating parent, that such relocation shall not weigh against an award of custody;
(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)(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 upon request. The preferences of older children should normally be given greater weight than those of younger children;
(8) Evidence of physical or emotional abuse to the child, to the other parent or to any other person; provided, that where there are allegations that one (1) parent has committed child abuse, as defined in §§ 39-15-401 or 39-15-402, 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 thereto. In addition, the court shall, where appropriate, refer any issues of abuse to the juvenile court for further proceedings;
(9) The character and behavior of any other person who resides in or frequents the home of a parent and such person's interactions with the child; and
(10) Each parent's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child.
Since we find that the trial court fully considered the factors provided in Tenn. Code Ann. § 36-6-106(a) and since the factors stated in Tenn. Code Ann. § 36-6-106(a) and 36-6-404(b) are substantially similar, we find no error in the trial court's failure to specifically cite to Tenn. Code Ann. § 36-6-404(b) in making its custody decision.
Mrs. Eastman next contends that the trial court erred by failing to properly weigh the relevant factors when making its comparative fitness analysis. Despite the parties' arguments to the contrary, we cannot conclude that the evidence preponderates against the trial court's conclusion that the parties are equally fit to care for their daughter. In their briefs, each parent lists the relevant factors considered by the trial court and argues how they prevail on the factor and how cumulatively, the factors weigh in favor of him or her as primary residential parent. However, it is clear from the transcript of the January 9, 2006, custody hearing and the court's January 24, 2006, order, that the trial court carefully considered each of the relevant factors when making its custody determination. Said the court:
3. That both parents are good parents and capable of raising the minor child. However, the Court weighed each of the factors pursuant to T.C.A. 36-6-106(a) as follows:
a. The love and affection of parents were equal.
b. The ability to provide food, clothing, medical care of each parent weighs slightly in favor of Mother.
c. The importance of continuity in the child's life as established by each parents was equal.
d. The stability of the family unit of the parents weighed in favor of Father.
e. The mental and physical health of the parents is equal.
f. The home, school and community record of the child is not applicable.
g. The preference of the child is not applicable based on the age of the child.
h. Evidence of physical or emotional abuse is not applicable. i. The character and behavior of any person who resides or frequents the home of each parent is equal.
j. Each parent's potential for future performance of parenting responsibilities was equal.
Therefore, the overall comparative fitness weighed slightly in favor of Father. . . .
. . .
It is further ORDERED, ADJUDGED and DECREED that the Husband shall be the Primary Residential Parent from July 1 to December 31 of each year. Wife shall be the Primary Residential Parent from January 1 to June 30 of each year.
Although we agree with the trial court that both parents love and care for their daughter and that both parents are equally capable of providing a loving and stable home for their child, Tenn. Code Ann. § 36-6-402(5) mandates that the trial court designate one party as the primary residential parent. See Hopkins v. Hopkins, 152 S.W.3d 447, 450 (Tenn. 2004). Thus we remand the case to the trial court to make such a designation.
We are also unable to conclude that the parenting plan fashioned by the trial court is not in the best interest of the child. Mrs. Eastman argues that in disregarding Tenn. Code Ann. § 36-6-404(b), the court failed to take into consideration both the developmental level of the child and the child's interaction with her half-brother, which are relevant factors not included in Tenn. Code Ann. § 36-6-106(a). In reliance on Cummings v. Cummings, No. M2003-00086-COA-R3-CV, 2004 WL 2346000, at *9 (Tenn.Ct.App. Oct. 15, 2004), Mrs. Eastman contends that an alternating six month residential plan is generally not in the best interest of a child in the early stages of development, even when the court concludes that both parents are equally fit. However, the trial court based its parenting plan on the harmonious and cooperative relationship existing between the parties as well as the parties' decision to share equal residential time with the child prior to the final hearing. Said the court:
The Court is very familiar with the rules in [ Gharacholou] where the Court did a six months/six months; Court of Appeals reversed and annulled. Those parents didn't get along at all, and six month, six months is not appropriate.
However, in this case I felt that these parents, and I think I made this comment, that these parents both had worked together, I thought, for the good of this child. And it was my understanding that prior to the hearing that they more or less equally shared time with the child, residential time with the child. I thought that both parents loved the child, and that the child loved the parents.
. . .
Some parts of the analysis might have favored the father's life, and some parts may have favored the mother's life, and I think I so designated that. But I felt that in the long run that the factors were pretty much even that both these parents were good parents, and that the child loved both of them, and that the child needed a dad and the child needed a mom. That's basically why I made my ruling six months and six months.
While we have reversed the trial court's decision to create such an arrangement where the child was in the early phases of childhood development, Cummings, 2004 WL 2346000, at *9, or where the parties could not maintain a harmonious and cooperative relationship, Darvarmanesh, 2005 WL 1684050, at *8, such is not the case in this matter. At the time of the final hearing, the child was five years old and the parties lived within close proximity to one another, thus, the arrangement would cause little disruption to the child's day-to-day activities. Furthermore, the parties successfully shared equal custody of the child during the six months prior to the final hearing and were able to communicate effectively regarding the care of their daughter during that time. We therefore find that the preponderance of the evidence is not contrary to the trial court's alternating six month schedule of equal residential placement.
Mrs. Eastman finally argues that the trial court erred by weighing her infidelity in the comparative fitness analysis. Mrs. Eastman bases her assertion on statements made by the court at the final hearing, wherein the court stated,
The stability of the family unit of the parents, the Court finds that the father comes out ahead on that because of the mother's association with the man that she's now living with.
. . .
So, really the overall comparative fitness analysis by the Court ends up in pretty much of a tie, maybe a little bit in favor of dad because of mother's association with another individual.
"Custody should never be used to punish or reward parents, but rather should promote children's best interests by placing them in an environment that will best serve their physical and emotional needs." Gaskill, 936 S.W.2d at 630 (internal citations omitted). Although "[s]exual infidelity or indiscretion does not ipso facto disqualify a parent from being awarded custody," Sutherland v. Sutherland, 831 S.W.2d 283, 286 (Tenn.Ct.App. 1991), "such acts may be relevant to the question of character, and thus to comparative fitness." Rayburn v. Rayburn, No. 01A01-9710-CH-00548, 1998 WL 721088, at *3 (Tenn.Ct.App. Oct. 16, 1998). The record reflects that the trial court considered all relevant factors in its comparative fitness analysis.
As a final matter, both parties request the costs of their attorney's fees for the appeal pursuant to Tenn. Code Ann. § 36-5-103(c), which provides:
The plaintiff spouse may recover from the defendant spouse, and the spouse or other person to whom the custody of the child, or children, is awarded may recover from the other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties, both upon the original divorce hearing and at any subsequent hearing, which fees may be fixed and allowed by the court, before whom such action or proceeding is pending, in the discretion of such court.
The decision to award a party his or her attorney's fees on appeal rests solely within the discretion of this Court. Archer v. Archer, 907 S.W.2d 412, 419 (Tenn.Ct.App. 1995). However, we are of the opinion that in this case each party should bear his or her own attorney's fees for the appeal.
It is well to take note of the limited issues presented in this appeal. While various complaints are made in the trial court, particularly in Tenn. R. Civ. P. 59 proceedings as to the propriety of postdivorce proceedings being heard by Substitute Judge Jack Norman, Jr., no issue is raised in this Court as to Judge Norman. No issue is raised as to the propriety of the divorce being granted to Mr. Eastman. No issue is raised as to the child support provisions of the Final Judgment requiring Mr. Eastman to pay $372 per month to Mrs. Eastman. The only issues raised on appeal are the assertion that the trial court abused its discretion in providing primary possession of the minor child on a six-month to one parent followed by a six-month to the other parent basis. It is not an appellate prerogative to impose upon the parties our notions of the advisability of the custodial arrangements made by the trial court in this case but rather to determine whether or not the trial court has abused its broad discretion in such matters. See Gaskill, 936 S.W.2d 626; Edwards, 501 S.W.2d 283. On the record before the Court, we can find no abuse of discretion in the judgment of the trial court.
Of significance, however, in view of Hopkins, 152 S.W.3d 447, the failure of the trial court to designate one of the parents as "primary residential parent" is cause for concern. There are differences between this case and Hopkins. In the case at bar, no objection is made as to the child support portion of the trial court's judgment, but vigorous objection is made as to the equal time custody provisions. Hopkins held that since under the child support guidelines only a primary residential parent may be awarded child support, it was necessary that one parent be designated as "primary residential parent." Hopkins, 152 S.W.3d at 450. Justice Barker, in his dissenting opinion, asserted that such was an attempt "to fit a round peg into a square hole." Hopkins, 152 S.W.3d at 450 (Barker, J., dissenting). Since the case at bar presents custody issues and no child support issues, while Hopkins presented no custody issues but only child support issues, it would seem under the dissent in Hopkins that we would be attempting to fit a square peg into a round hole. In view of the majority holding in Hopkins, however, indicating that child support may only be awarded to a "primary residential parent," we feel impelled to remand this case to the trial court for further consideration of the "primary residential parent" issue.
It is likewise well to observe that the equal custody arrangement in this case is based upon the record that was before the trial court at the time of the Final Decree, including the fact that the parties lived in close physical proximity to each other and that the same daycare facilities were utilized regardless of which parent had physical possession of the child. As always, the continuation of such arrangement is dependent upon changing circumstances and remains for the future within the purview of the trial court's continuing jurisdiction.
The decision of the trial court is affirmed, and the case is remanded to the trial court for consideration of the issue of designation of a primary residential parent and for such other considerations as may be determined by the trial court. Costs of the appeal are assessed to Appellant.