Opinion
No. M2007-00215-COA-R3-CV.
Assigned on Briefs November 29, 2007.
Filed May 29, 2008.
Appeal from the Chancery Court for Dickson County; No. 944505; George C. Sexton, Judge.
Judgment of the Chancery Court Affirmed.
David D. Wolfe, Dickson, Tennessee, for the appellant, Troy Dillard.
Jennifer Davis Roberts, Dickson, Tennessee, for the appellee, Valerie Joann Dillard.
Patricia J. Cottrell, P.J., M.S., delivered the opinion of the court, in which Frank G. Clement, Jr., and Andy D. Bennett, JJ., joined.
OPINION
The trial court granted the father of a three year-old child a divorce on the ground of inappropriate marital conduct and named the mother as the child's primary residential parent. The father argues on appeal that the trial court erred by relying on the mother's long-time role as the child's principal caretaker as the sole basis for its parenting arrangement decision. He also insists that he is the more fit primary residential parent for the child. The mother argues that the trial court acted well within its discretion by naming her the primary residential parent. After conducting our own independent analysis of the record, we conclude that there was no error in the trial court's decision.
I. BACKGROUND
Troy Dillard ("Father") and Valerie Joann Dillard ("Mother") married on December 27, 1996, when he was 24 years old and she was 20. At the time of their marriage, Father worked for Premdor, a manufacturing concern in Dickson, but his real interest lay in a cattle-raising operation on his grandparents' farm. Mother was a student at Austin Peay State University. She graduated in 1999 with a bachelor's degree in business and an emphasis in accounting. Shortly thereafter, she took a full-time job with a company called Paymaxx.
The parties experienced difficulties with their marriage early on. One point of contention was Father's time spent in his involvement with the care of twenty or thirty head of cattle on his grandparents' farm. He hoped someday to be able to retire early and to work full-time in the cattle business. Since that day had not yet come, he would customarily leave his regular job at 4:00 p.m. and go to the farm for several hours of work before returning to the marital home.
In 1998 or 1999, Father entered into an extra-marital affair which further damaged the parties' relationship, and they decided to separate. Father admitted his fault, and the parties went to counseling to work through their problems. They succeeded to the extent that they were able to resume living together. They subsequently decided that they needed about two good years together before starting a family.
The child at the center of this controversy, Sarah, was born in December of 2002. The parties agreed that it would probably be in the child's best interest for Father to support the family while Mother stayed at home to raise her. However, Mother worked at several part-time jobs after the birth of Sarah, including keeping books for her father's business and working at her church's day care center. Father continued to work on his grandparents' farm, which meant not spending as much time at home as Mother felt he should. According to his account, he went to the farm three or four evenings a week, and generally came home between 6:30 and 7:30. According to Mother's account, he usually came home between 7:00 and 9:00. At some point, Father found love letters in the bottom of Mother's closet, and realized that she had also been involved in an extra-marital affair.
II. LEGAL PROCEEDINGS
Father filed a Complaint for Absolute Divorce on January 12, 2005, citing irreconcilable differences and inappropriate marital conduct. He asked for primary residential custody of Sarah, and he submitted a proposed parenting plan. Mother filed an Answer and Counter-Complaint for divorce. She also cited irreconcilable differences and inappropriate marital conduct, and specified that Father had been guilty of adultery. She likewise asked to be made the primary residential parent for Sarah, and she filed her own parenting plan. In addition, Mother asked for temporary support and for exclusive temporary possession of the marital home pending the final hearing.
The hearing on Mother's motion was delayed when the judge originally assigned to the case recused himself because of a familial relationship with members of Mother's family. In the interim, Mother left the marital home and moved in with her brother, Brian Duke. A hearing before a newly assigned judge was conducted on March 31, 2005, after which the court entered an order designating Mother as Sarah's primary residential parent on a temporary basis.
Father's counsel took Mother's deposition on August 29, 2005. During the deposition, she admitted to one extra-marital affair. Asked about two other men she had been involved with, Mother testified that they were just good friends, and she denied any sexual relationship with either. She subsequently filed unsworn corrected answers to those deposition questions, admitting that she in fact had sexual relationships with both those men. At trial, she admitted that she had perjured herself during deposition.
The final divorce hearing was conducted on February 9, 2006. The parties' testimony suggested that although their love for each other may have dissipated, both of them remained devoted to Sarah and eager to serve her best interests. This was corroborated by other witnesses who testified in a very positive way as to their observations of interactions between parent and child. For example, Shannon Cochran testified that Sarah was "very attached to her Daddy." Steve Bailey said that Father was a great father. Jennifer Brady characterized Valerie as a loving mother who always put Sarah first.
However, the parties' testimony also raised questions about their deficiencies, which opposing counsel emphasized during argument. Father's attorney argued that Mother's affairs and her dishonesty about them set a very poor example for her daughter and placed the truthfulness of her entire testimony in doubt. He also complained that Mother had not been very cooperative on matters of visitation, and he argued that Mother's brother, Brian Duke, had a known history of domestic violence and should not be residing in the same home as Sarah. For her part, Mother's attorney pointed to Father's own unfaithfulness, and she argued that Mother did an exemplary job of raising the child while Father chose to devote most of his time and energy to a money-losing cattle operation.
Father testified that Sarah enjoyed spending time on the farm with him and submitted photos of her bottle-feeding a calf. Mother testified that Father often left her with his grandparents when he was tending to the cattle and that on one occasion her took her for a ride on a four-wheeler without requiring her to wear a helmet.
At the conclusion of proof and argument, the trial court took the case under advisement. In its Memorandum Opinion, filed on March 31, 2006, the court declared that it was awarding Father a divorce on the ground of inappropriate marital conduct. The division of marital property included the award of the marital home to Father, subject to his payment of one-half the equity in the property to the Mother. As to Sarah, the Memorandum simply reads, "[t]he Court finds that, Defendant having been the principal caretaker for the Parties' minor child, it is in the child's best interest that Mother should be designated as the Primary Residential Parent." There was no further explanation of the Court's reasoning or of other factors it may have taken into account.
Father filed a motion asking the court to clarify the ruling in its Memorandum Opinion to specify whether child support was to be paid, and if so whether income should be imputed to Mother, "since she is admittedly voluntarily under-employed." The Final Decree of Divorce was entered on November 14, 2006. It included the rulings contained in the Memorandum Opinion and incorporated a parenting plan. Under that plan, major decisions as to Sarah's education, non-emergency health care, religious upbringing, and extracurricular activities were declared to be joint, but "[i]f the parties can't agree, the mother will make the decision." The court declined to impute income to Mother and ordered Father to pay both prospective and retroactive child support.
Father subsequently moved the court to remove a provision from the parenting plan which required the parties to refrain from leaving Sarah in the care of others for extended periods of time without first offering the other parent the right to provide care. He alleged that Mother strictly applied this "first right of refusal" to him, while she herself failed to comply with it, leaving the child in the care of others without giving him the opportunity to exercise parental visitation. The court declined to remove the provision at issue from the parenting plan, stating that "as the parties fail to observe and adhere to the court's ruling regarding this provision, either party may file a Petition for Contempt to address the matter with the court." This appeal followed.
III. THE PARENTING PLAN
The significance of parenting, or custody and visitation, arrangements are recognized as "among the most important decisions confronting a trial court." Chaffin v. Ellis, 211 S.W.3d 264, 286 (Tenn.Ct.App. 2006) (quoting Rice v. Rice, M1998-00973-COA-R3-CV, 2001 WL 812258, at *2 (Tenn.Ct.App. July 19, 2001)); see also Curtis v. Hill, 215 S.W.3d 836, 839 (Tenn.Ct.App. 2006); Shofner v. Shofner, 181 S.W.3d 703, 715 (Tenn.Ct.App. 2004). In making such decisions, the needs of the child are paramount with the desires of the parent being secondary. Chaffin, 211 S.W.3d at 286. This determination is fact driven, and the trial court must consider all of the facts and circumstances involved in reaching its decision. Id.
Trial courts have broad discretion to make decisions regarding parenting arrangements, but those determinations must be made based on proof and applicable principles of law. Chaffin, 211 S.W.3d at 286; D.v.K., 917 S.W.2d 682, 685 (Tenn.Ct.App. 1995). Given the discretion involved and the fact that the decision often hinges on witness credibility, our court has stated that "appellate courts are loathe to second-guess a trial court's conclusion." Chaffin, 211 S.W.3d at 286; Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn.Ct.App. 1997). The trial court's findings of fact are reviewed 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 714, 731 (Tenn. 2005); Bah v. Bah, 668 S.W.2d 663, 665 (Tenn. 1983).
Pursuant to Tenn. Code Ann. § 36-6-404(a), any final decree in an action for absolute divorce involving a minor child must incorporate a permanent parenting plan. A parenting plan is defined in Tenn. Code Ann. § 36-6-402(3) 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."
According to Tenn. Code Ann. § 36-6-404(a), a permanent parenting plan shall:
(1) Provide for the child's changing needs as the child grows and matures, in a way that minimizes the need for further modifications to the permanent parenting plan;
(2) Establish the authority and responsibilities of each parent with respect to the child, consistent with the criteria in this part;
(3) Minimize the child's exposure to harmful parental conflict;
(4) Provide for a process for dispute resolution, before court action, unless precluded or limited by § 36-6-406; . . .
(5) Allocate decision-making authority to one (1) or both parties regarding the child's education, health care, extracurricular activities, and religious upbringing. The parties may incorporate an agreement related to the care and growth of the child in these specified areas, or in other areas, into their plan, consistent with the criteria in this part. Regardless of the allocation of decision making in the parenting plan, the parties may agree that either parent may make emergency decisions affecting the health or safety of the child.
(6) Provide that each parent may make the day-to-day decisions regarding the care of the child while the child is residing with that parent.
(7) Provide that when mutual decision making is designated but cannot be achieved, the parties shall make a good faith effort to resolve the issue through the appropriate dispute resolution process, subject to the exception set forth in subdivision (a)(4)(F). . . .
Thus, as part of the parenting plan, the court is to determine a residential schedule, which designates the primary residential parent and designates in which parent's home the child will reside on given days during the year. Tenn. Code Ann. § 36-6-402(5). The parenting plan legislation does not use the terms "custody" or "visitation," but instead establishes a parenting arrangement based on a schedule of when the child will reside with each parent. While the parenting plan legislation did not explicitly repeal the prior statutes on custody and visitation, it is clear that the legislature intended that courts (1) adopt permanent parenting plans in all divorces involving minor children; (2) not award "custody" or "visitation" in cases where a parenting plan is required; and (3) apply a specific set of factors, included in the parenting plan legislation, when approving or designing a permanent parenting plan.
A residential schedule is defined as:
. . . the schedule of when the child is in each parent's physical care, and it shall designate the primary residential parent [the parent with whom the child resides more than 50% of the time]; in addition, the residential schedule shall designate in which parent's home each minor child shall reside on given days of the year, including provisions for holidays, birthdays of family members, vacations, and other special occasions, consistent with the criteria of this part; provided, that nothing contained herein shall be construed to modify any provision of § 36-6-108;
Tenn. Code Ann. § 36-6-402(5).
There are situations where the custody statutes still apply. For example, Tenn. Code Ann. § 36-6-404(a) does not require parenting plans in parentage cases, as opposed to divorce decrees; nor does that requirement apply to agreed orders of modification of a custody order entered in a divorce prior to July 1, 1997.
The factors that a court must consider in determining a residential schedule and designating a primary residential parent for minor children include:
(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.
Tenn. Code Ann. § 36-6-404(b).
While the trial court is obligated to consider all the appropriate factors in reaching its decision, it is not required to list in its opinions or orders each of those factors along with its conclusion as to how that factor affected the overall determination. Woods v. Woods, M2006-01000-COA-R3-CV, 2007 WL 2198110, at *2 (Tenn.Ct.App. Jul. 26, 2007) (no Tenn. R. App. P. 11 application filed); Matlock v. Matlock, M2004-0 1379-COA-R3-CV, 2007 WL 1452691, at *5 (Tenn.Ct.App. May 16, 2007) (no Tenn. R. App. P. 11 application filed) (citing Bell v. Bell, W2004- 00131-COA-R3-CV, 2005 WL 415683, at *5 (Tenn.Ct.App. Feb. 22, 2005)); Burnette v. Burnette, No. E2002-01614-COA-R3-CV, 2003 WL 21782290 (Tenn.Ct.App. July 23, 2003) (no Tenn. R. App. P. 11 application filed).
Our courts have observed several times, however, that it would be helpful for the trial court to explicitly set out its factual findings in as much detail as possible so that we may review those findings under the standard of 13(d) Tenn. R. Civ. P. which accords them a presumption of correctness unless the evidence preponderates otherwise. See Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002); Nichols v. Nichols, 792 S.W.2d 713, 716 (Tenn. 1990); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). Where the trial court fails to make specific factual findings, there are no findings to which the presumption can attach, and we must conduct our own independent review of the record to determine where the preponderance of the evidence lies. Curtis v. Hill, 215 S.W.3d at 839.
The primary concern in determinations of a child's residential placement remains the best interests of the child. Tenn. Code Ann. § 36-6-401(a) ("In any proceedings between parents under this chapter, the best interests of the child shall be the standard by which the court determines and allocates the parties' parental responsibilities.") Battleson v. Battleson, 223 S.W.3d 278, 282 (Tenn.Ct.App. 2006) (citing Koch v. Koch, 874 S.W.2d 571, 575 (Tenn.Ct.App. 1993)). In choosing which parent to designate as the primary residential parent, the court is to undertake a "comparative fitness analysis." In re C.K.G., 173 S.W.3d at 731; Bah, 668 S.W.2d at 666; In re Parsons, 914 S.W.2d 889, 893 (Tenn.Ct.App. 1995). Thus, the question before us is one of comparative fitness. Where both of the parents appear capable of exercising custodial responsibilities over the child, we must review the character, conduct and circumstances of each to determine who is the more fit to serve the welfare and best interest of the child. Gaskill v. Gaskill, 936 S.W.2d 626, 630 (Tenn.Ct.App. 1996); Bah v. Bah, 668 S.W.2d 663, 666 (Tenn.Ct.App. 1983).
There is little substantive difference between the factors applicable to parenting plans, set out in Tenn. Code Ann. § 36-6-404(b), and those applicable to custody determinations, set out in Tenn. Code Ann. § 36-6-106(a), as far as determining comparative fitness and the best interests of the child. Burden v. Burden, E2006-01466-COA-R3-CV, 2007 WL 2790674, at *7 (Tenn.Ct.App. Sept. 26, 2007) (no Tenn. R. App. P. 11 application filed) (determination of custody made in accordance with the factors in Tenn. Code Ann. § 36-6-106 and Tenn. Code Ann. § 36-6-401); Eastman v. Eastman, M2006-01134-COA-R3-CV, 2007 WL 1227042, at *2 (Tenn.Ct.App., April 25, 2007) (no Tenn. R. App. P. 11 application filed) (factors in the two statutes are "substantially similar"); Gervais v. Gervais, M2005-01483-COA-R3-CV, 2006 WL 3258228, at *7 fn 9 (Tenn.Ct.App. Nov. 9, 2006) (no Tenn. R. App. P. 11 application filed) (many of the factors in the two statues are "identical" and there was no issue in that case that "require[s] reconciliation of any difference"); Murr v. Murr, M2005-01377-COA-R3-CV, 2006 WL 2523971, at *3 (Tenn.Ct.App. Aug. 31, 2006) (no Tenn. R. App. P. 11 application filed) ("little practical difference" between the two statutes).
Our review of the record persuades us that as to most of the relevant statutory factors, both parties appear to be equally fit and equally capable of providing for Sarah's best interest. They have both shown love and affection towards the child, and her emotional ties with both parents appear to be strong. Mother and Father are equally disposed to support their child by providing her with food, clothing, medical care and education. Neither parent has been shown to suffer from any mental or physical condition that would affect his or her ability to take care of Sarah.
Father cites two factors which he contends show that Mother is less fit to serve as Sarah's primary residential parent than he is. First, he points to Mother's continued residence in the home of her brother, Brian Duke, and to violent behavior that Mother's brother has demonstrated in the past. The record shows that Mr. Duke has a history of alcohol-fueled anger, including episodes of domestic violence, and one incident involving a firearm which occurred before Sarah was born. These concerns relate to factor (13), "[t]he character and behavior of any other person who resides in or frequents the home of a parent or caregiver and such person's interactions with the child."
Mother testified, however, that Mr. Duke was allowed to watch Sarah before the parties separated, and that Father did not raise any objections to his role until the filing of the divorce complaint. She also testified that Sarah loved Mr. Duke, that he was "a loving, nurturing and beloved uncle," and that he had generously opened his home to Mother and child after they left the marital home. Further, there are no allegations that he has ever behaved inappropriately towards Sarah or towards Mother. Thus, although Mr. Duke's history may be a relevant factor for our consideration, we do not find that he poses any kind of threat to Sarah's welfare.
Father also complains that Mother has been very uncooperative in matters involving his residential time, which he contends implicates factor (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." Father testified that Mother will not take phone calls from him, but insists that they communicate by e-mail and text messaging only, making it more difficult and time-consuming to coordinate visitation.
We note that the parenting plan adopted by the court recites the rights both parents are entitled to under Tenn. Code Ann. § 36-6-101, including "The right to unimpeded telephone conversations with the child at least twice a week at reasonable times and for reasonable durations." Father does not allege that he has been denied that right, and the proof suggests that he does enjoy telephone communications with his daughter on a regular basis.
Mother's refusal to use the telephone to discuss visitation with Father may make cooperation between the parties more difficult. However, while the parenting plan includes the right of each parent to receive timely information from the other as to certain matters affecting the child, it does not specify that any particular medium should be used for such communication.
Father also testified that on several occasions, Mother has ignored the court-ordered temporary residential schedule depriving him of some of his residential time. He testified that she has simply notified him that she had other plans and insisted that her attorney has advised her that as the primary residential parent, such decisions are her right. If Mother's attorney is indeed giving her such advice, then she is doing her client a disservice. A court-ordered parenting arrangement is just that, a court order. Parties are required to follow it.
Among other things, Father cites an incident in which Mother decided to take a vacation with Sarah from December 26 to December 30, 2005, even though the parenting plan in effect at that time did not include any provision for vacation. Mother notified Father on Christmas Day that he would not be able to exercise his court-ordered visitation that week, then sent him an e-mail message the following day which included the statement, "[f]rom a legality perspective, as the primary custodial parent of Sara, I reserve the right to vacate with her during specific times of the year. Being that Christmas is one of those luxuries, I have chosen to exercise that opportunity . . . any legality questions or comments can and will be handled by my legal representative."
It is also axiomatic that a party who assumes the role of primary residential parent acquires not only rights over the child, but also comprehensive responsibility for the child's welfare. Our legislature and our courts have long recognized that a child's best interests are served by a custody and visitation arrangement which promotes the development of healthy relationships with both parents. Tenn. Code Ann. § 36-6-401(a); Rogero v. Pitt, 759 S.W.2d 109, 112 (Tenn. 1988); Cyrus v. Helson, 989 S.W.2d 704, 708 (Tenn.Ct.App. 1998); Bah v. Bah, 668 S.W.2d at 667; Dillow v. Dillow, 575 S.W.2d 289, 291 (Tenn.Ct.App. 1978). As this court has stated "[m]others and fathers each make unique and complementary contributions to their children's welfare and emotional development." Wix v. Wix, No. M2000-00230-COA-R3-CV, 2001 WL 219700 (Tenn.Ct.App. Mar. 7, 2001) (no Tenn. R. App. P. 11 application filed).
Thus, Mother's role includes the responsibility to cooperate with Father on matters regarding the child's residential schedule and to encourage Sarah to develop and maintain a positive relationship with him. Adherence to the requirements of a court-ordered visitation schedule is an indicator of the primary residential parent's willingness to encourage such a relationship, and, therefore, of that parent's fitness for parenting responsibilities.
This court has on occasion reversed a lower court's custody order and removed custody from a parent who was uncooperative with the other parent's efforts to maintain a meaningful relationship with the child. Morman v. Morman, No. M2005-00931-COA-R3-CV, 2006 WL 2068757 (Tenn.Ct.App. July 25, 2006) (no Rule 11 perm. app. filed). See also Roache v. Bourisaw, M2000-02651-COA-R3-CV, 2001 WL 1191379, at *6 (Tenn.Ct.App. Oct. 10, 2001) (no Rule 11 perm. app. filed).
However, it does not appear to us that Mother has deliberately tried to undermine Father's relationship with Sarah. Mother insists that she does encourage a close relationship between Father and Sarah. The proof shows that Sarah has a close and loving relationship with both parents. Father admits that there is a close and affectionate bond between himself and his daughter; he did not present evidence that Mother sought to discourage that relationship. The proof also shows that the child is well-mannered and happy. Thus, while we do not condone any unilateral actions by Mother to curtail the residential time Father was entitled to during the pendency of this case, we cannot find that Mother's conduct demonstrated an intent to interfere with Father's relationship with his child.
We note that since Father is both holding down a job and working on the farm, another consideration in determining a residential schedule may be relevant: "[e]ach parent's employment schedule, and the court may make accommodations consistent with those schedules." Tenn. Code Ann. § 36-6-404(b)(15).
The trial court cited Mother's role as "the principal caretaker for the Parties' minor child," as its sole stated basis for naming her as the primary residential parent. The trial court's finding that Mother has been Sarah's principal caretaker is not disputed. The fact that the trial court mentioned only one factor does not necessarily indicate that only one factor was considered. Instead, the trial court could have determined that consideration of the other factors did not resolve the question of the child's best interest and that the primary caregiver factor was the determinative one.
Two factors set out in Tenn. Code Ann. § 36-6-404 validate the use of such a consideration: factor (6), "[t]he degree to which a parent or caregiver has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities;" and factor (11), "[t]he importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment." The General Assembly has recognized the need for stability and continuity in the lives of children of divorcing parents. Tenn. Code Ann. § 36-6-401(a). Our courts have also recognized that stability is important to any child's well-being, and they have emphasized the importance of continuity of placement in custody and visitation cases. See Taylor v. Taylor, 849 S.W.2d 319, 328 (Tenn. 1993); Contreras v. Ward, 831 S.W.2d 288, 290 (Tenn.Ct.App. 1991). But, "[c]ontinuity does not trump all other considerations. Depending on the facts, a parent who has been a child's primary caregiver may not necessarily be comparatively more fit than the other parent to have permanent custody of the child." Earls v. Earls, 42 S.W.3d 877, 885 (Tenn.Ct.App. 2000). In cases like the present one, however, where both parents show themselves more or less equally fit to exercise custodial responsibilities for a young child, continuity may tip the scales in favor of the parent who has taken the primary responsibility in the past.
That appears to be the true basis of the trial court's decision, and we are not inclined to reverse that decision, even though the trial court's memorandum opinion did not express its reasoning in those terms. Trial courts have been granted broad discretion in matters of a parenting arrangement, or, earlier, custody and visitation. Appellate courts are generally reluctant to second-guess those decisions. Parker v. Parker, 986 S.W.2d 557, 563 (Tenn. 1999); Battleson v. Battleson, 223 S.W.3d at 283; Nelson v. Nelson, 66 S.W.3d 896, 901 (Tenn. Ct. App 2001). The allocation of parenting time often hinges on subtle factors, such as the parents' demeanor and credibility during the proceedings. Johnson v. Johnson, 165 S.W.3d 640, 645 (Tenn.Ct.App. 2004) (citing Gaskill v. Gaskill, 936 S.W.2d at 631). Since trial courts have the opportunity to directly observe the parents, they are in the best position to fashion arrangements to suit the unique circumstances of each case. Parker v. Parker, 986 S.W.2d at 563; Adelsperger v. Adelsperger, 970 S.W.2d at 485.
Thus, a trial court's decision regarding a parenting arrangement 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); Marlow v. Parkinson, 236 S.W.3d 744, 748 (Tenn.Ct.App. 2007). When we apply the factors found in Tenn. Code Ann. § 36-6-404(b) to the evidence in this case, it appears to us that the trial court's custody decision falls well within the spectrum of possible reasonable rulings, and thus within the discretion of the court.
IV. FIRST RIGHT OF REFUSAL
Father also objects to the "first right of refusal" provision of the parenting plan which he alleges Mother uses to limit his visitation time with Sarah. The provision reads, "In the event either parent shall require child care, in excess of eight (8) hours or more, during his or her residential time, the other parent shall have the first right of refusal to care for the child." Since both parties work and lead busy lives, the proper operation of such a first right of refusal would appear to serve the beneficial purpose of maximizing Sarah's time with her parents and reducing the time she has to be in the care of third parties. The provision applies to both parties, so it does not appear unreasonable on its face, but of course like any rule it can be misused or misapplied. As the trial court noted, when that happens the injured party has the option of invoking the court's contempt powers.
Father contends that the provision gives Mother another opportunity to control and limit his and his family's contact with the child. He argues on appeal that when he brings Sarah to his grandparents' farm, under the terms of the first right of refusal he will first have to offer Mother the opportunity to care for Sarah instead of simply allowing his grandparents to do so if the need arises when he is doing farm work. Mother argues that since Father has testified that he does not spend an unreasonable or lengthy time on farming tasks, he should not have to leave Sarah with the grandparents for more than eight hours, and thus the first right of refusal will not be triggered.
In any case, as we observed when discussing the question of custody, trial courts are given broad discretion in matters of child custody and visitation, and appellate courts are reluctant to second-guess a trial court's determinations as to those matters. Our Supreme Court has held that "it is not function of appellate courts to tweak a visitation plan in the hopes of achieving a more reasonable result than the trial court," even if the appellate court believes it can find a "better" resolution. Eldridge v. Eldridge, 42 S.W.3d at 88. The inclusion of the first right of refusal provision in the parenting plan falls well within the spectrum of possible reasonable rulings in this case, and thus, we do not believe the trial court abused its discretion in declining to remove it from the plan.
V.
The decree of the trial court is affirmed. We remand this case to the Chancery Court of Dickson County for any further proceedings necessary. Tax the costs on appeal to the appellant, Troy Dillard.