IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

February 21, 2019 Session

JASMINE DESIREE WIGHTMAN v. JOSHUA CHARLES WIGHTMAN

Appeal from the Probate Court for Cumberland County

No. 2018-PF-6114 Larry Michael Warner, Judge

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No. E2018-01663-COA-R3-CV

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In this appeal, the father challenges the trial court’s determination of the residential 

parenting schedule as it relates to visitation during the school term. Upon our review, we 

find that the trial court did not abuse its discretion.

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

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which CHARLES D. 

SUSANO, Jr., J. and D. MICHAEL SWINEY, C.J., joined.

Jeffrey A. Vires, Crossville, Tennessee, for the appellant, Joshua Charles Wightman.

Henry D. Fincher, Cookeville, Tennessee, for the appellee, Jasmine Desiree Wightman.

OPINION

I. BACKGROUND

Jasmine Desiree (Wightman) Taylor (“Mother”) and Joshua Charles Wightman 

(“Father”) were married on January 16, 2011. Mother, 28 years old at the time of trial, 

was attending school to obtain training as a radiological technician. Father, 35 years old, 

worked as a corrections officer at the Bledsoe County Correctional Facility. Father 

stipulated that he earned $4,200 a month in his job. Despite attending classes, Mother 

was able to earn $1,440 a month. Two children were born of the marriage, Joshua 

(11/22/2010) and Brady (7/9/2014).

Mother filed a complaint for divorce on March 12, 2018. The parties agreed to the 

05/21/2019
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provisions of an agreed temporary order entered on June 8, 2018, which provided in 

relevant part as follows:

a. During the summer, Father would have visitation with the Children 

during his days off from his job as a Corrections Officer;

b. During the school year, Father would have visitation every other 

weekend from Friday 5:00 pm until Sunday 5:00 pm and other times as the 

parties could agree;

c. Father’s child support arrearages would be reserved to the final hearing.

On July 10, 2018, the parties filed a Joint Stipulation and Statement in Domestic 

Relations Case:

a. Summer visitation will be week on, week off divided equally between 

the parties;

b. Father has an admitted child support arrearage of $4,770, and will retire 

it with payments of $100 per month;

c. Father has the Children on their Spring Break; Mother has them on their 

Fall Break;

d. The parties have joint decision making over the Children’s education, 

health, religious and extracurricular decisions.

During the proceedings, Father admitted that Mother was a good parent. He 

observed that she was the one who primarily bathed the Children, cooked for them, took 

them to doctors, and addressed school matters. Father claimed to be attentive to the 

Children’s education, observing that “I just make sure they keep their grades up, they’re 

at school on time, and they don’t miss.” However, he admitted: “I try to just have fun 

with them when I have them.” He acknowledged that his work schedule was 6:00 a.m. to 

2:00 p.m., five days a week, with holidays and weekends off. Despite Father contending 

that his boss was “real flexible,” that he could come in late or work nights in order to get 

the Children to school on time, and that his father could help him with taking the 

Children to school and could “be there whenever he needs to be,” he offered no proof to 

corroborate these claims. 

Upon the court asking Father why he had not paid his child support, Father first 

blamed his lawyer. He then observed: “I’ve just been paying our household bills.” The 

trial court accepted this explanation. On cross examination, however, Father admitted 

that the expenses he had paid were not for the residence where Mother and the Children 
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resided and, therefore, did not support the Children’s needs. He acknowledged that 

Mother had paid for the Children’s food and clothing over the six months’ separation on 

one-third earnings of what Father earned. Father contended that he had bought clothes 

for the Children to use at his parents’ house, where he was living. According to Father, 

he planned to get his own place once he could “budget that out.” 

Father informed the court that he would work with Mother and communicate with 

her regarding co-parenting issues. He claimed that visitation had gone smoothly. On 

cross examination, however, Father admitted that he had given Mother short notice of his 

schedule and threatened to throw her in jail if she did not deliver the Children the next 

morning to him. He acknowledged that the parties had engaged in a dispute just the 

weekend before the trial over visitation. Father noted on cross examination that he had 

agreed in the Agreed Order to permit the Children to stay with the Mother every week 

during the school year until he saw the child support calculations.

The trial court made both oral and written findings on the issue of school year 

visitation:

Regarding the joint equal custody, that will be denied. The 

child[ren] need[ ] to know where home is. If we shift them 

back and forth every week—I’ve talked to kids, hundreds 

over the last 12 years [that I have been on the bench] in this 

situation, and they don’t know where home is. And, 

especially at the age of these children.

Standard visitation . . . . Split holidays, accordingly, and 

somebody’s going to have to move Christmas, somebody’s 

going to have to move Thanksgiving, that’s just the way it 

works in these deals.

If the parties cannot agree otherwise, he gets spring break, she 

gets fall. If they can’t agree otherwise. Okay. And I 

encourage you to deviate from this. This is just as minimum. 

If he’s got something special coming up, let him have them. 

I’m sure he’s a good dad. I’m sure you’re a good mother. I

have no doubt about that, neither one of you.

The final decree added to these findings, approved the Joint Stipulation, and found 

in relevant part as follows:

The Court affirmatively finds that the best interest of the 

minor children, after considering all relevant factors under 

T.C.A. § 36-6-101, and based upon the Husband’s testimony, 
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that the Wife has been the primary caregiver of the minor 

children and should continue to be throughout the school year. 

Thus, during the school year, the Husband shall have visitation 

pursuant to the Court’s Standing Visitation Order [which is 

every other weekend and as agreed].”

The Permanent Parenting Plan entered into by and between the 

parties is in all respects ratified and approved by this Court 

and is made a part of this Decree by reference as if fully set 

forth herein.

(numbering omitted). Father filed a timely notice of appeal.

II. ISSUES

The issues raised in this appeal are restated as follows:

A. Did the trial court abuse its discretion in this residential 

scheduling matter. 

B. Should Father pay Mother’s attorneys’ fees for this 

frivolous appeal.

III. STANDARD OF REVIEW

Our review of the trial court’s findings of fact is de novo with a presumption that 

the findings are correct unless the evidence preponderates otherwise. Tenn. R. App. P. 

13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). We review a trial 

court’s conclusions of law de novo, according them no presumption of correctness. 

Armbrister, 414 S.W.3d at 692.

A trial court’s decision regarding parenting arrangements is reviewed under the 

deferential “abuse of discretion” standard. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 

2001); Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988). See also Woolbright v. 

Woolbright, No. M2016-02420-COA-R3-CV, 2018 WL 934815, at *4 (Tenn. Ct. App. 

2018); Hoover v. Hoover, No. E2014-01629-COA-R3-CV, 2015 WL 4737413, at *4 

(Tenn. Ct. App. 2015); Roland v. Roland, No. M2014-02032-COA-R3-CV, 2015 WL 

5719833, at *6 (Tenn. Ct. App. 2015); Aragon v. Aragon, No. M2013-01962-COA-R3-

CV, 2014 WL 1607350, at *4 (Tenn. Ct. App. Apr. 21, 2014).

When applying the “abuse of discretion” standard, the Tennessee Supreme Court 
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requires the court to apply a presumption that the decision is correct, and then view the 

decision in the light that most favors affirmance:

[W]hen reviewing a trial court’s exercise of discretion, the 

appellate court is to “presume that the trial court’s decision is 

correct and review the evidence in a light most favorable to 

upholding the decision.” White v. Beeks, 469 S.W.3d 517, 

2015 WL 2375458, at *7 (Tenn. May 18, 2015)(citing 

Lovlace v. Copley, 418 S.W.3d 1, 16-17 (Tenn. 2013)(itself 

quoting Gonsewski [v. Gonsewski], 350 S.W.3d [99,] 105 

[(Tenn. 2011))].

Roland, 2015 WL 5719833 at *6.

Trial courts have “broad discretion” when making custody and visitation 

determinations. Eldridge, 42 S.W.3d at 85. Our Supreme Court has explained:

Because decisions regarding parenting arrangements are 

factually driven and require careful consideration of numerous 

factors, Holloway v. Bradley, 190 Tenn. 565, 230 S.W.2d 

1003, 1006 (1950); Brumit v. Brumit, 948 S.W.2d 739, 740 

(Tenn. Ct. App. 1997), trial judges, who have the opportunity 

to observe the witnesses and make credibility determinations, 

are better positioned to evaluate the facts than appellate 

judges. Massey-Holt v. Holt, 255 S.W.3d 603, 607 (Tenn. Ct. 

App. 2007). Thus, determining the details of parenting plans 

is “peculiarly within the broad discretion of the trial judge.” 

Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988)(quoting 

Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn. Ct. App. 

1973)). “It is not the function of appellate courts to tweak a 

[residential parenting schedule] in the hope of achieving a 

more reasonable result than the trial court.” Eldridge v. 

Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001). A trial court’s 

decision regarding the details of a residential parenting 

schedule should not be reversed absent an abuse of discretion. 

Id. “An abuse of discretion occurs when the trial court . . . 

appl[ies] an incorrect legal standard, reaches an illogical result, 

resolves the case on a clearly erroneous assessment of the 

evidence, or relies on reasoning that causes an injustice.” 

Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011).

Armbrister, 414 S.W.3d at 692-93. As long as the court applies the appropriate law and 

reaches a reasonable result on the facts presented at trial, the trial court’s decision is to be 
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affirmed on appeal. As stated recently in Woolbright v. Woolbright, 

Thus, we will not find that a trial court abused its discretion in 

establishing a parenting plan unless 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. (quoting Eldridge, 42 

S.W.3d at 88).

2018 WL 934814, at *4.

IV. DISCUSSION

A.

When making a determination regarding a residential parenting schedule, the court 

must base its decision on the best interest of the Children. Tenn. Code Ann. § 36-6-

106(a). Courts are required to consider each of the factors enumerated in Tennessee 

Code Annotated section 36-6-106(a), but they are not required to list each factor and 

explain how each factor impacts its ultimate determination. Murray v. Murray, No. 

M2009-01972-COA-R3-CV, M2009-01576-COA-R3-CV, 2010 WL 3852218, at *8 

(Tenn. Ct. App. Sept. 28, 2010). 

The factors listed in Tennessee Code Annotated section 36-6-106 provide as 

follows:

(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;
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(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;

(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 
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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 

interaction 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.

Tenn. Code Ann. § 36-6-106.

Upon considering the testimony presented, the trial court found that both parents 

loved the Children and were good parents. The proof, however, showed that Mother had 

performed the majority of parenting responsibilities relating to the daily needs of the 

Children, including bathing them, feeding them, taking them to school and helping with 

their homework. The court found that the Children had been with Mother since birth. 

The court further determined that Father’s work schedule was not convenient for the 

Children’s school schedule, as he works 6 a.m. to 2 p.m. out of the county. Despite 
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Father claiming that his boss was flexible, he offered no corroboration of this alleged 

fact. He did not explain with any precision how his family would help, and he did not 

have them testify that they would. Thus, the court found that Father’s requested 

residential schedule was not in the Children’s best interest. The court referenced several 

reasons for its ruling: the Children’s need for a stable residence, their need to not be 

shuffled around, and the need for them to be settled and focused on school. 

In their Agreed Order, the parties adopted the same schedule as the one ultimately 

ordered by the trial court. It expressly covered school year visitation. By so agreeing, 

Father indicated that he believed these provisions to be in the Children’s best interest. He 

admitted that he only decided to fight for school-year 50/50 custody upon learning that he 

would have to pay more in child support. 

The trial court heard and considered all the proof presented by the parties. Father 

has presented no proof that would justify a finding that the trial court abused its 

discretion in devising a residential parenting schedule. We conclude that the result the 

trial court reached is not outside the spectrum of rulings that reasonably results from 

applying the correct legal standards to the evidence.

B.

Tennessee Code Annotated section 27-1-122 reads in full as follows:

When it appears to any reviewing court that the appeal from 

any court of record was frivolous or taken solely for delay, 

the court may, either upon motion of a party or of its own 

motion, award just damages against the appellant, which may 

include, but need not be limited to, costs, interest on the 

judgment, and expenses incurred by the appellee as a result of 

the appeal.

Tenn. Code Ann. § 27-1-122. The question of whether to find an appeal frivolous and to 

award attorney’s fees rests in the appellate court’s sound discretion. Chiozza v. Chiozza, 

315 S.W.3d 482, 493 (Tenn. Ct. App. 2009). This discretion is to be exercised “sparingly 

so as not to discourage legitimate appeals.” Whalum v. Marshall, 224 S.W.3d 169, 181 

(Tenn. Ct. App. 2006). 

Father’s appeal in this matter is clearly frivolous. He has offered no reasonable 

basis for us to reverse the trial court’s decision under the deferential “abuse of discretion” 

standard.
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V. CONCLUSION

The judgment of the trial court is affirmed, and the case is remanded for the 

determination of Mother’s attorney’s fees pursuant to Tennessee Code Annotated section

27-1-122. Costs of the appeal are taxed to the appellant, Joshua Charles Wightman.

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JOHN W. MCCLARTY, JUDGE