IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 11, 2005 Session

JAMES ROSS KEITH v. JORDAN ASHLEY SURRATT

 Appeal from the Circuit Court for Wilson County

No. 12746 C.L. Rogers, Judge

No. M2004-01835-COA-R3-CV - Filed January 31, 2006

In this child custody case, Father appeals and argues that the trial court erred in awarding Mother

primary residential custody of the parties' twin minor children. Mother also appeals and argues that

the trial court erred in setting Father's child support, in failing to assess her attorney's fees against

Father, and in changing the children's surname to that of Father. After careful review of the evidence

and applicable authorities, we find no error and affirm the judgment of the trial court in all respects.

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

Remanded

SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and

CHARLES D. SUSANO, JR., J., joined.

Frank Lannom, Lebanon, Tennessee, for the appellant, James Ross Keith.

Stephen W. Pate, Murfreesboro, Tennessee, for the appellee, Jordan Ashley Surratt.

OPINION

I.

James Ross Keith, ("Father") and Jordan Ashley Surratt, ("Mother"), were married on

February 14, 2002. The parties’ marriage was short-lived and was annulled by order entered June

19, 2002. After the marriage was annulled, Mother briefly resided with another couple. However,

within a short time, Mother and Father reunited, and, although they did not remarry they resumed

living together from August 2, 2002, until November 6, 2002. During this latter period of time,

Mother became pregnant with the parties’ children.

After the parties separated on November 6, 2002, Mother moved to Savannah, Georgia,

where she resided with her father and stepmother. On April 15, 2003, Mother gave birth to twins,
At the time of birth the twins were given the last name “Surratt”; however, this was subsequently changed to

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“Keith” as noted below.

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Tucker Chatham Surratt and Savannah Ashton Surratt . On April 18, 2003, Father was informed of 1

the birth, and he traveled to Savannah and submitted to a DNA test on April 30, 2003. On May 12,

2003, Father received the results of the test which confirmed that he was the twins’ biological father.

On May 14, 2003, Father petitioned the Circuit Court of Wilson County, Tennessee for

legitimation and custodyof the twins upon allegations that, inter alia, Mother had taken illegal drugs

during her pregnancy and that she was not capable of providing the twins with necessary care. On

that same date, a restraining order was entered by presiding judge, Honorable Clara Byrd, decreeing

that Mother give Father immediate custody of the twins and restraining Mother from coming around

Father’s residence pending further order of the court. The court also ordered that Mother appear

before it on May 23, 2003, and show cause why Father’s petition should not be granted. 

 On May 22, 2003, Mother filed a motion disputing the trial court’s venue and requesting that

the restraining order be set aside pending a hearing upon that issue and that the show cause hearing

be continued. The motion also noted the employment of Father’s father, Gary Keith, as head of

courtroom security in Wilson County and requested that the court make a determination as to any

potential conflict of interest or appearance of impropriety with respect to Father’s case being heard

by that court.

On August 15, 2003, Judge Byrd recused herself from the case. However, the restraining

order of May 14, 2003, was not stayed, and custody of the twins was transferred to Father on August

15, 2003. 

In consequence of Judge Byrd’s recusal, an order was entered by the Tennessee Supreme

Court on August 29, 2003, pursuant to which the case was assigned to the Honorable C.L. Rogers

as special judge from another district. Thereafter, Mother filed notice striking her motion to dismiss

and submitting to the jurisdiction of the Wilson County Circuit Court based upon her stated intent

to reside in Wilson County permanently.

On September 8, 2003, Mother filed a motion requesting that the restraining order of May

14, 2003, be set aside; that she be vested with primary residential care of the parties’ twin minor

children subject to Father’s reasonable visitation; and that Father pay child support consistent with

the Tennessee Child Support Guidelines.

By order entered September 30, 2003, after a hearing on September 17, 2003, inter alia the

trial court decreed that the order of May 14, 2003 be set aside in its entirety, that Mother receive

primary custody of the parties’ minor twin children pendente lite subject to specified visitation by

Father, and that Father pay child support in the amount of $608.00 per month.
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On October 14, 2003, Mother responded to Father’s original petition of May 14, 2003, by

answer and counter-petition wherein she requested, among other things, that she be vested with

primary custody of the twins and that Father be required to pay child support and be jointly

responsible for the children’s healthcare expenses.

The case came on for trial on June 24 and 25, 2004, after which, on July 13, 2004, the trial

court entered its final order. The order recited the parties’ agreement that Father is the natural father

of the twin minor children. Based upon various stated findings of fact, the trial court granted the

parties joint custody of the twins and vested primary residential responsibility of the twins with

Mother. The order further required that Father pay child support in the amount of $476 per month

effective July 15, 2004, based upon a gross annual salary of $26,000. The order also decreed that

the twins’ surname be changed to “Keith” and that each party be responsible for his or her own

attorney’s fees with court costs being assessed to Father. Father appeals.

II.

The issues addressed in this appeal are restated as follows:

1. Whether the evidence preponderates against the trial court’s ruling vesting Mother, rather

than Father, with primary residential responsibility of the parties’ minor twin children. 

2. Whether the trial court erred in setting the amount of child support to be paid by Father.

3. Whether the trial court erred in changing the children’s surname to “Keith.”

4. Whether the trial court abused its discretion in failing to require Father to pay Mother’s

attorney’s fees.

III.

Our review of the trial court’s conclusions of law is de novo upon the record with no

presumption of correctness. Kendrick v. Shoemake, 90 S.W.3d 566, 569-570 (Tenn. 2002). Our

review of the trial court’s findings of fact is de novo upon the record accompanied by a presumption

of correctness unless the evidence preponderates to the contrary. Tenn. R. App. 13(d); Bogan v.

Bogan, 60 S.W.3d 721, 727 (Tenn. 2001).

IV.

A.

 The first issue we address is whether the trial court erred in placing primary residential

responsibility of the parties’ minor twin children with Mother rather than Father. Applying the

above standard of review in addressing this issue, we bear in mind that “[t]rial courts are vested with
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wide discretion in matters of child custody and the appellate courts will not interfere except upon

a showing of erroneous exercise of that discretion.” Koch v. Koch, 874 S.W.2d 571, 575 (Tenn. Ct.

App. 1993). We further note that because “[c]ustody and visitation determinations often hinge on

subtle factors, including the parents’ demeanor and credibility during [trial],” appellate courts “are

reluctant to second-guess a trial court’s decisions.” Gaskill v. Gaskill, 936 S.W.2d 626,631 (Tenn.

Ct. App. 1996).

The paramount consideration in a child custody case such as this one is the best interest of

the child in light ofthe comparative fitness of the parents. In re C.K.G., 173 S.W.3d 714, 732 (Tenn.

2005). As provided by Tenn. Code Ann. § 36-6-106, a court is required to consider “all relevant

factors” in making a custody determination, including the following which we find to be pertinent

in this case:

(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 ...;

(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;

...

(8) Evidence of physical or emotional abuse to the child, to

the other parent or to any other person; ... .

(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.

In its final order of July 13, 2004, the trial court indicated that it considered the above

statutory factors in conducting a comparative fitness analysisin this case and relative to that analysis

set forth the following findings of fact:
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The twins, now 15 months old are in the Mother[‘]s care. The

Mother, age 22, lives with her mother and stepfather. The

Father, 34, lives with his mother and father. The Mother has

a daughter, age 4, by a previous marriage, said child being in

the Maternal Grandmother’s legal custody. The Father has

legal custody of a daughter, age 4, from a previous

relationship. Both parents rely on the grandparents for

housing and childcare. Both parents have a history of illegal

drug use. The Father, in June 2003, resigned as a Deputy

Sheriff after accusations of involvement in drug dealing. The

Father has problems controlling his temper and conduct. The

Father has physically abused the Mother. The Father

demanded that the Mother abort the twins. The Father lied

about this to the Court. The Father gave no support, financial

or in kind for the twins until Court ordered in September

2003. The Maternal Grandparents have assisted their daughter

and the twins from birth. The Paternal Grandfather did not

know the names of the twins. The Paternal Grandmother did

not appear in Court. There was testimony that her physical

health problems limited her child care ability. The Mother

now lives at home with her mother and stepfather, the twins

and her previous daughter. The Father lives at home with his

mother and father and his previous daughter. Only on one

short occasion has the Father lived away from his parents with

his daughter. The parties lived together, were briefly married

for several months, during which time the Mother was the

care giver for Father’s first daughter. The Father now works

for his father earning $26,000.00 annual gross as a Security

Guard. The Mother has had numerous jobs, she now works

in a bar and grill and attends cosmetology school. The

Mother earns $8,400 annual gross. The Father made

visitation difficult for Mother during Father[‘]s brief period

of a Tennessee ex-parte, Court ordered custody of the one

month old twins who were born and resided in Georgia with

Mother and her father and stepmother. The Mother has had

the twins since birth other than the interruption caused by the

ex-parte order and the later recusal of the issuing Judge. The

Mother has given proper care and demonstrated proper

parental conduct with the twins. The parties appear to have

calmed down since the Court order of September 2003 giving

Mother primary residential placement and Father specific

residential time. Both now reside in the same town. The

Father exercises residential time and pays child support. The
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Father admits the Mother[‘]s child care has been proper. The

Father fears Mother may leave with the children. The

Custody arrangement and relocation conditions will address

this fear. The remaining conflict is the paternal grandparents

who dislike the Mother and the maternal grandparents who

dislike the Father all with reason. Normally this is not a

factor, but in this case, both Father and Mother still reside

with their respective parents. This factor is considered in the

Court’s final decision and could, in the future, cause this

Court to review its decision if such affects the children’s best

interests. 

In support of his argument that the trial court erred in vesting Mother with primary residential

responsibility of the twins, Father asserts that Mother has shown a lack of initiative in providing

basic necessities for herself and her first daughter by relinquishing custody of that child to its

maternal grandparents and by failing to provide her support. Father also notes in this regard that

Mother has in the past failed to maintain “consistent substantial employment” and also has a history

of failing to maintain a stable and consistent residence, holding eleven different residences between

August 2001 and August 2003. The implication of these assertions is that Mother will not properly

care for the twins in a manner consistent with their best interests. We do not find that the evidence

supports this conclusion.

As noted, the twins were born on April 15, 2003, and were in Mother’s care from that time

until they were transferred to the temporary custody of Father on August 15, 2003. Mother was

residing in Savannah, Georgia, with her father and stepmother, Stacey Clay, for the first three and

a half months after the twins were born, and Ms. Clay testified that Mother “did everything a good

mother does” during that period of time. Father’s father, Gary Keith, testified that on the day the

twins were transferred to the custody of Father, the children were in good physical condition, well

fed, and appeared to be properly cared for. The twins were returned to the custody of Mother in

September of 2003 and remained in Mother’s custody at the time of trial on June 24, 2004. During

this period of time the twins and Mother resided exclusively in the home of Mother’s biological

mother, Gail Allen, who testified as follows:

Q. Tell the Court what has - - what have you personally

observed [Mother] do regarding the care for these twins [sic]

children, the children really at issue today, obviously, from

September until today?

A. She does everything.

Q. Which is?
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A. Feed, change diapers, buy groceries, bathe, play. I mean,

we all kind of play with them, but I do not assist in the

necessary care of the twins; I do not assist in that. [Mother]

does all of it.

Q. Does she ask you to do that?

A. No, she does not.

Q. Based on your observation, does she need your care,

assistance, or guidance?

A. No. She’s got her hands full, no doubt about it. Of course,

a mother would always like to think a child needs their

guidance, but you know, she does a good job. The children

are cared for, you know; and they’re happy, healthy, laughing

little babies.

Joyce Tizdale has owned and operated Tizdale Preschool, a licensed and accredited daycare

facility, for twenty seven years. She has known Mother for 15 years and kept the twins on Mother’s

behalf between July of 2003 and May of 2004. Ms. Tizdale testified as follows:

Q. All right. And I believe you’ve already said [Mother] is

responsible for delivering and picking up [the twins]. Her

mother is not doing that?

A. No.

Q. And [Father] is not doing that?

A. No. 

Q. All right. The appearance of the children every morning

when they’re brought to your facility, how are they dressed

and groomed?

A. They were very well dressed, and she always had - -

because I don’t furnish their food or their bottles, or their

formula or anything - - she always had all that. The children

were always dressed verywell, were clean, and well groomed.

Q. No problem with personal hygiene?
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A. No.

Q. No problems with grooming?

A. No.

Q. No problem with inappropriate clothing?

A. No, none.

Q. And her choice of food and beverage for the children - -

was that appropriate?

A It was very well done, very well thought up, and very

nutritious.

Q. All right. And did that continue consistently with that

pattern from July of ‘03 until May of ‘04?

A. Yes.

Q. Was there ever a single incident, a single day that you can

tell the Court that you were concerned about either

appearance, hygiene, clothing, their diet, their food or

anything like that?

A. No. She always had it together.

Q. And based upon your observation of [Mother] during the

past year when she would deliver the children in the morning

or pick up children in the afternoon, how was her demeanor

in her relationship to her children?

A. Very loving. She’d kiss them a lot.

Q. Every morning?

A. Every morning, and sometimes they would cry after

because they would want their mommy. That was typical.

Q. In afternoons when she would come pick her up, how

would the children react to her?
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A. Very happy. 

Q. And how would she react to them?

A. She was happy. She would put her arms out and give

them hugs, and they would crawl to her.

Q. All right. Ms. Tizdale, can you tell this Court this evening

of a single factor that you personally - - of which you are

personally aware that reflects negatively upon [Mother’s]

parental fitness, anything negative or bad about her ability to

care for these children.

A. I don’t know anything negative as far as taking care of the

children.

Finally, Father himself testified as follows regarding Mother’s care of the twins:

Q. From the date that these children obviously have been

initially under [Mother’s] care and control from the date of

birth until August 15 of ‘03, and then from September 15, on

or about - - I’m sorry - - whatever the date was, from

September ‘03 to today when the children have been again in

[Mother’s] custody, are you aware of any neglect of these

children by [Mother]?

A. They’ve had some rashes that have been - - you know,

everybody is going to have diaper rash.

Q. Right.

A. Outside of that rash being so severe, no, I don’t know of

any mistreatment. I think everything has went well.

... 

Q. To the best of your knowledge, I mean, has [Mother]

provided, you know, good - - I mean, not just basic care, but

good and loving care for these children regarding feeding,

clothing, bathing, dealing with them, curing their illnesses?

A. Like I said, I’m not welcome to their house, but

everything appears to be correct.
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While the record does confirm a degree of instability in Mother’s behavior in the past, there

is substantial evidence showing that presently Mother has the ability and determination to properly

care for the twins, and she has succeeded in this regard at least from the time of their birth in April

of 2003 until trial of the case in June of 2004 - a duration of approximately thirteen months not

counting the period of time the children were in the custody of Father.

Father’s contention that he is comparatively more fit to have primary residential care of the

twins is without merit. In particular, we are compelled to this conclusion by two findings of the trial

court.

First, the trial court found that Father failed to provide the twins with financial support or inkind support until ordered to do so in September of 2003. In his brief, Father notes that he had

custody of the twins from August 15, 2003, until September 17, 2003, but otherwise admits that this

finding is correct and the evidence does not preponderate to the contrary. 

Second, the trial court found that Father physically abused Mother. The incident to which

this finding is related occurred when Mother returned to Father’s residence on November 21, 2002,

after the parties’ final separation on November 6, 2002. Mother testified as follows:

I’d been gone for about two weeks. So I called [Father], and

I said I’d like to come and get some my belongings because

I hadn’t taken anything with me - - a couple changes of

clothes. So I show up over there to get my stuff, and then I

walked in and sat down in the living room. For the first few

minutes, we were just talking, and I told him I was going to

get some of my stuff. So I’d gone into the laundry room

which was on the side of the house. And when I did, it made

him mad for some reason, I guess because I was leaving. I

was getting my belongings; and that’s something that I’d

never done, was packed up all my belongings and left. And

he grabbed a hold of me from behind. And the glass door was

right in front of me. So to keep him from throwing me out

the door and down the steps, I put my feet on either side of

the door and pushed off. And when I did, he just threw me on

the floor, and he hit me in the eye. And it busted some blood

vessels, and my eye swelled up. 

Sheriff Chris Shockley of the Trousdale Sheriff’s Department was dispatched to Father’s

residence to investigate and testified that Mother exhibited injury consistent with her complaint that

Father had hit her in the eye. Mother, who as we have noted was pregnant at the time of this

incident, further testified that the day after she was assaulted by Father she went into pre-term labor.

On appeal, Father does not contest the trial court’s finding that he abused Mother and the evidence

does not preponderate otherwise.
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In sum, after careful review of the record, it is our determination that the evidence does not

preponderate against the findings of the trial court in this case. It is our further determination that

the trial court properly considered the relevant statutory factors under Tenn. Code Ann. § 36-6-101

relative to these findings and did not abuse its discretion in vesting Mother with primary residential

responsibility of the parties’ twin children.

B.

The next issue we address is whether the trial court erred in setting the amount of child

support to be paid by Father.

The trial court decreed that Father pay child support in the amount of $476 per month based

upon his current annual gross salary of $26,000. However, Mother notes that Father’s testimony

indicated that he earned an average annual gross income in the two years preceding trial of

approximately $37,000 during which time he was employed by the Wilson’s County Sheriff’s

Department. Mother asserts that this amounts to a gross monthly income of $3,091 and that under

the Tennessee Child Support Guidelines, income at this level warrants child support being set at

$790 per month for the parties’ two minor children. Mother observes that Father conceded that he

voluntarily resigned from his position with the Wilson County Sheriff’s Department and that he has

not sought equivalent employment to compensate for the resulting loss of income he has

experienced. It follows, Mother argues, that Father is intentionally underemployed, and child

support should be set at $790 per month based upon his prior income. We disagree.

Father testified that in 1996, prior to his employment with the Wilson County Sheriff’s

Department, he obtained employment with Keith Professional Security Services, a business owned

by his father. When Father began employment with the Wilson County Sheriff’s Department in

March of 2002, he did not give up his job with Keith Professional Security Services, and he testified

that he continued to work for both employers and as a consequence worked a total of seventy-two

to eighty hours per week. It appears that the annual gross income of $37,000 realized by Father

during each of the two years preceding trial constituted the money he earned from two employers

by working extensive hours. Upon resigning from the Sheriff’s Department in June of 2003, Father

continued to work at Keith Professional Security Services and maintained his employment there at

the time of trial at an annual salary of $26,000 per year. Mother’s argument that Father is

underemployed is not based upon proof that he could obtain a more lucrative job, but rather upon

the fact that Father no longer realizes the salary he did when he had two jobs. We do not agree that

a person is voluntarily underemployed because he chooses to work less than seventy-two to eighty

hours per week. Accordingly, we find no merit in Mother’s argument the trial court erred in setting

the amount of Father’s child support obligation.
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C.

Next, Mother contends that the trial court erred in changing the twins’ surname from

“Surratt” to “Keith.”

The record shows that Mother’s surname of “Surratt” is not her maiden name but rather the

name she retained after divorcing her ex-husband, William Andrew Surratt. Gary Keith testified as

follows regarding why the parties’ twin children should bear Father’s surname instead:

If [Mother] gets remarried, she’s going to have a name

different from her children; and she’s going to be in the same

shape as [Father] is right now. Those kids are going to look

at themselves and say - - you know, when they go to school,

and they go to the different functions around, the sporting

things, and say, “Well, how come my name is not the same

[as] my mother’s, and it’s not the same as my father’s?” I

think it’s going to have a very adverse reaction on those

children. 

In its final order the trial court states that “[t]he children shall carry the surname of the natural

Father, Keith.” Although in its order the court does not offer grounds for its decision in this regard,

the court did state as follows at trial:

And the name - - we have an agreement that the children are

to be legitimated. We don’t have agreement on the names.

Here’s where I am on that to give you some input. The

custom as far as I know in the whole United States is the child

has the name of its natural father, good or bad. And I have

put thought into what Mr. Keith, Sr. was saying as far as the

children having the name of somebody that’s not their father

and mother. I mean, so you all see where I’m coming from.

In Barabas v. Rogers, 868 S.W.2d 283, 287 (Tenn. Ct. App. 1993), we restated the law

governing the change of a child’s surname as follows:

The courts should not change a child’s surname unless the

change promotes the child’s best interests. Among the

criteria for determining whether a child’s surname will be in

the child’s best interests are: (1) the child’s preference, (2) the

change’s potential effect on the child’s relationship with each

parent, (3) the length of time the child has had its present

surname, (4) the degree of community respect associated with

the present and proposed surname, and (5) the difficulty,
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harassment, or embarrassment that the child may experience

from bearing either its present or its proposed surname. The

parent seeking to change the child’s surname has the burden

of proving that the change will further the child’s best

interests. 

(Citations omitted).

Mother asserts that “[n]either father nor his witnesses, including his own biological father,

testified as to any fact relevant to the five criteria to be considered, regarding a child’s name change.”

However, the primary question that the court must answer before changing the surname of a child

is whether the change is in the child’s best interests. While the five criteria we referenced in

Barabas may offer a court guidance in answering that question, those five criteria are not exclusive

and obviously may not be relevant given the facts of a particular case. In this case, we find as did

the trial court that the testimony of Gary Keith constitutes sufficient proof that it is in the best

interests of the parties’ children that their surname be changed to “Keith.” The trial court properly

relied upon this testimony in reaching its decision in that regard.

D. 

The final issue we address is whether the trial court abused its discretion in failing to require

that Father pay Mother’s attorney’s fees in this matter.

A trial court’s power to award attorney’s fees in a custody proceeding is codified at Tenn.

Code Ann. § 36-5-103(c) as follows:

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 the court. 

Mother’s argument that Father should be required to pay her attorney’s fees is based upon

her assertion that she was awarded residential custody of the parties’ children and that Father’s

income amounts to an average of the $35,000 to $40,000 he earned in 2002 and the $36,693 he
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earned in 2003. As we have noted above, Father resigned from his job with the Wilson County

Sheriff’s Department in June of 2003, and his annual income at the time of trial had diminished to

$26,000 because he was no longer working for two employers. Mother’s argument that Father

should be required to pay her attorney’s fees based upon an annual salary which substantially

exceeds that which he actually receives is without merit. Based upon our review of the record, we

do not agree that the trial court abused its discretion in failing to award Mother attorney’s fees in this

case.

V.

For the foregoing reasons, we affirm the judgment of the trial court and remand for further

action consistent with this opinion. Costs on appeal are adjudged against James Ross Keith and

Jordan Ashley Surratt equally.

_________________________________________

SHARON G. LEE, JUDGE