Opinion
No. W1999-01000-COA-R3-CV.
Filed October 19, 2000. Assigned on Briefs August 29, 2000.
An Appeal from the Chancery Court for Chester County, No. 9262, Joe C. Morris, Chancellor.
Affirmed.
Jesse H. Ford, III, Jackson, Tennessee, for the Appellant Zondra Kaye Smith Bailey.
Jack S. Hinson, Lexington, Tennessee, for the Appellee Dennis Wade Bailey.
Holly Kirby Lillard, J., delivered the opinion of the court, in which Alan E. Highers, J. and David R. Farmer, J., joined.
MEMORANDUM OPINION
Rule 10 (Rules of the Court of Appeals of Tennessee). — (b) Memorandum Opinion. The Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case.
Plaintiff/Appellee Dennis Wade Bailey ("Father") and Defendant/Appellant Zondra Kaye Smith Bailey ("Mother") were married in 1992. The parties have one child, Brittany Leigh Bailey ("Brittany"), born in 1993. During the marriage, Mother and Father resided in Chester County and both worked for Johnson Controls in Lexington, Tennessee.
The parties separated on January 1, 1998. Mother moved to Hardeman County, and lives in her mother and stepfather's home. Father remained in the marital home in Chester County. On January 15, 1998, Father filed a complaint for divorce, alleging inappropriate marital conduct and irreconcilable differences. Father sought temporary custody of Brittany, which was granted. Ticant harm to the child from the decision. Hawk , 855 S.W.2d at 581. The Court asserted that it sought to avoid "an unquestioning judicial assumption that grandparent-grandchild relationships always benefit children," noting the necessary threshold finding of harm before the court can interfere with the parents' decision. Id. at 581.
In this case, the trial court did not require visitation with Mother's father against Mother's wishes. Rather, the trial court considered Mother's lack of a regular relationship with her father in light of Brittany's attachment to him. Hawk does not mandate a threshold finding of substantial harm before the trial court can consider the minor child's relationship with grandparents as one of the factors in its comparative fitness analysis.
Furthermore, Mother's lack of a regular relationship with her father was only one of many factors considered by the trial court in its analysis. The trial court noted several factors it weighed in its analysis, including the fact that Father continues to reside in the marital home and that Father's mother had cared for Brittany on a daily basis since birth and continues to do so. In addition, the trial court considered the fact that, if Father were granted custody, Brittany would attend school with children she had grown up with in the church and community.
Mother also argues that the trial court ignored the fact that awarding custody to Father meant that Brittany would be required to wake at 4: 00 a.m. each work day to go to Father's parents' house. We acknowledge that this is considerable hardship to Brittany. However, considering the fact that this has been the routine for Brittany for most of her life, we cannot conclude that this is sufficient reason to reverse the trial court's decision.
In sum, we find that the trial court did not err in considering Mother's lack of a regular relationship with her father in making its custody decision. Viewing the evidence as a whole, we cannot conclude that the evidence preponderates against the trial court's award of custody to Father.
The decision of the trial court is affirmed. Costs are taxed to the Appellant, Zondra Kaye Smith Bailey and her surety, for which execution may issue if necessary.
________________________ Holly K. Lillard, Judge.