### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE A ssi gne d onBr ie fs , Apr il 2, 200 7
JOHN A NTH ONYMEL TON v. JEN NIF ER SHA NN ON PR OFIT T

(ME LTON ) JOHN SON
Direc t Appeal from the Chancer y Court for Hum phreys County No. 05-079 Hon. Leonard M. Mart in, Chan cellor

No. M2006- 01412-COA-R 3-CV - F iled on May 3, 2007

At the time the par

ties were d i v o rc ed, they

essentially

ag ree d to a joint custodial arra ng ement for their two childre n. Subsequently , the father fil ed a Petition alleg ing c hang e of c ircumstance s and for pr imary

custody of the c hildren. The w ife filed a Counter-pe tition for primary custody

. The Tr ial Co u rt h e ar d

e v id e n c e an d

aw ar d e d p r im ar y c u s to dy to th e father. The mo th e r h a s a p p e a le d

. We a ff ir m.

Te nn. R . A pp. P .3 App e al a s o f Rig ht ; J udgm e ntof t he Cha nc e r y C our t A ffirm e d.

H ER SCH EL P I CKE N S F RAN KS , P.J ., delivere d the opi nion of t he cour t, in which C H A RLES D. S US ANO , J R ., J ., and D. M I CH A EL S WI NEY , J ., joined.

Jane t S. Ke lle y , D ic ks on , T e nn e sse e , f or Ap pe lla nt.
Dan R. B radle y , Waverly , Tenne ssee, f or appe llee.

OP IN ION

I n this post-divorce action, the fathe r i s seeking custody of the pa rties’ two c hildren. The Divorc e De cre e wa s entere d on Aug ust 31, 2 0 0 5 , an d the MDA provide d that the par ties children, Alanna (d.o.b. 5/6/95) and Ga rre tt (d.o.b. 4/6/00), would reside one wee k with the mother and one w eek w ith the father , and that the pa rties would have j o i n t decision-makingpower , and neither w ould pay

child support to the other. F urther, that ne ither par ty would have a

member of

the opposite sex i n their home whe n the childre n wer e ther e.-2- The fa ther’s Petition was filed on A pril 21, 2006, aver

ring that the m other ha d moved in with her boy friend in violation of the D ecr ee, a nd had also moved the children a way from the marital re sidence such that they wer e havingto be transpor ted t wo hours per day to school, and aske d the Court that the father be named a s primary car eg iver, a

nd be aw arde d support.
The mother f

iled an Answe r and Counter -Petition, asse rt ing that she and he r boy friend ha d marrie d, and denie d beinga poor house keepe r. She admitted there had bee n a mater ial c h an g e i nc i r c u m s t an c e s , b u t d e n i e d t h a t t h e f a t h e r s h o u l d b e n a m e d

p r i m ar y r e s i d e n t i a l p ar e n t

. In her Counter-Petition, she asserted that she should be named primar y residential pa

rent, a nd that the fathe r s ho uld

pa y c hil d sup po rt . Bo th p are nts fi le d a pr op os e d Pa

re nti ngPlan in

su pp or t of the ir Petitions . A hea

ring was he ld on May

11, 2006, and the mother’s counsel beg an by saying the y

wer e there on a “te mporary

basis”, and the judge interrupted a nd stated t h at h e thoug ht they wer e ther e s e e k in g to mo dify the par enting plan. The f

ather ’s counse l responded a ffirmatively , and the mother ’s counsel stated that they

came in for a temporar

y hear ing on May 3, and it wa s rese t. The Court stated he thoug ht when they

rese t it, they ag ree d to g o ahea d and hea r the pe titions to modify

on the new day , and it was rese t so the mother would have proper notice. The mother’s c ounsel reiter ated that she thoug ht t h ey were there on the tempora ry basis. The mother’ s counsel stated that they had counter -petitioned for

a modification of the pare nting plan, and the Court asked whether they wer e prepa red “ to hear all of this this m orning ” and she replied the y wer e. The Court then asked why she was calling it temporar

y , and the mother ’s counse l replied, “ we discusse d rig ht before the hea ring that this was on a tempora ry basis. So that was my

understanding . But if it’s g oing to b e for a perma nent cha ng e, that’s f

ine too.” The pa rties proc eede d to present their evide nce. A fter the trial was c oncluded, the Trial Court stated that he had viewe d the photos (photos offe red in evidenc e of the condition of the marital re sidence the day

following the date the mother moved out) and did not f ind them alarming and not a s bad as others he had seen, but he did ha ve a problem with the mother allowing an animal to use t he bathroom all over the house. The J udg e also ref err ed to t he photo showingbug s on the floor, and stated one should take whateve r measure s nece ssary to pr event bug s from g etting into the house. The Court found both par ents loved the c hildren, b u t t hat he thoug ht the children would be better

off with the father. H e stated that he had c oncer ns about the childre n’s future , and thought the parties should consult with the childre n’s teac hers r eg ardingdecisions to be made about school, etc. The J udg e st ated that he was also conce rned about the children being home alone f or a per iod of time during the summer, until the mother got home from work, a nd that it would be better for the c hildren to be with the father be cause the fathe r’s mother would be ther e for them when the fathe r wa s at work, a s the fathe r lived with his mother.

The Court then entered an Orde r designating the father as pr imary car eg iver, a

nd set visitation rights and c h ild support in an attache d ParentingPlan. The mother wa s order ed to pay $123.47 per w eek in c hild support in the Decr ee.This statutory section dea ls with restrictions based on a buse, neg lect, etc

. 1
-3- On a pp e a l, t he mot he r p re se nts the se iss ue s:
1. Whether the mother’ s due proc ess rig hts we re v i o lated bec ause the Court made “ a tempora

ry hear ing a final hea ring ”?
2. Whether the Tr ial Court e rre d in de signating the father a s primary residential pa re nt?
3. Whether the Tr ial Court erre d in modify ing the pare nting plan?
The moth e r ar g u e s th e T r ia l Co u rt e r r e d in h a v in g a f

in a l h e ar in g w h e n th e y

wer e supposed to be havinga tempora ry hear ing, a

nd that the mother wa s deprived of her Constitutional rig hts to a final hea

ringafte r ade quat e dis cover y and full and c omplete trial pre paration. As the t ra n s cr i p td em o n s t ra t es , h o we v er , t h e C o u rt qu es t i o n edb o t hco u n s el ab o u t t h e na tu re o f th e h ea ri n g, and af ter some leng thy

discussion, asked the mother ’s counse l if sh e was rea dy to proce ed on the Petition and Counter-Petition, and she replied she was. The Court then asked why she wa s calling the hea ring tem p o ra ry , and her

reply , as quoted a

bove wa s “we discussed rig ht before the hea ring that t h i s was on a te mporary basis. So that was my

understanding . But if it’s g oing to be for a perma nent cha ng e, that’s f

ine too.”
T h e m o t h e r ’ s c o un s e l h a d t h e o p p o rtu n i t y t o a dv i s e t h e C o u rtt h a ts h e w a s n o tr e a dy, for a full and complete trial, but she affirmed twice t hat they wer e re ady

to proce ed on the mer its of the Pe tit ion

and Counte r- Pe tit ion , an d the n p ro c e e de d w iththe he ari ng . T he iss ue is w ith out me ri t, Next, the mother argues t he father should not have been named primary residential pare nt, however

she admits that the re has been a materia l c hang e in c ircumstance , which re ndere d the initial pla

n unw or ka ble . Sh e a g re e s th a t th e pa re nti ngpla

ns are to b e mod if

ie d a s p ro vid e d in Te nn . Co de Ann. §3 6- 6- 40 4( b) , w hic h s tate s:

Any pe rm ane nt p are nti ngpla n s ha ll i nc lud e a

re sid e nti a l sche du le a s d e fi ne d in §36-6-402( 3). The court shall make residential provisions f or eac h child, consistent wi th t he child' s d e ve lop me nta l le ve l and the fa mil y ' s so c ia l and

e c on omi c circ umstances, whic h encour ag e ea ch par ent to m ai ntain a loving , stable, and nurturing relationship wit h the child. The c hild's re sidential schedule sha ll be consistent with this part. I f the li mitations of § 36-6-406 are not disposit ive of the 1
c hil d' s r e sid e nti a l sc he du le , th e c ourt sh a ll c on sid e r t

he fo llo wi ngfa c tor s: (1) The pare nt's ability to instruct, inspire, and enc ourag e the c hild to prepare for a life of se rvice, an d t o compete suc cessf ully in the society

that the child fa ces a s an a du lt;-4- (2) Th e relative streng th, nature, a nd stability

of the c hild's re lationship with each pare nt, including whe ther a pare nt has taken gr ea ter re sponsibili ty for pe rfor

ming pare nting r esponsibiliti es re lating to the da ily needs of the child; (3) T h e willingne ss and ability of ea ch of the pare nts to facilitate and e ncoura g e a c los e and c on tin uin g pa re nt- c hil d re latio ns hip be tw e e n the c hil d an d the oth e r p are nt, consistent with the best interests of the child; (4) Wi l l ful ref

usal to attend a c ourt-orde red pa rent e ducation seminar

may be c on sid e r e d

b y t h e c o u rta s e v i d e n c e o f t h a tp ar e n t ' s l a c k

o f g o o d f a i t hi nt he se pr oc e e din g s; (5) The dispositi on of each parent to provide the child with food, clothing, me dical car e, educ ation and other

nece ssary

car e; (6) The deg ree to which a pare nt ha s been the primary car eg iver, define d as the pa rent wh o h a s ta

ke n th e g re a te r r e sp on sib ili ty fo r p e rf or min g pa re nta l r e sp on sib ili tie s; (7) The love, af

fec tion, and emotional ties exi sting be tween each par ent and the child; (8) The emotional needs a nd developmenta l level of the c hild; (9 ) T he c ha

ra c te r a nd ph y sic a l and

e mot ion a l f

itn e ss o f e a c h p are nt a s it re late s to eac h pare nt's a

bility to pare nt or the we lfare of the c hild; (10) The child' s interac tion a nd interre lationships with siblings and w ith significa nt a d u l t s , a s w e l l a s t h e c h i l d ' s i n v o l v e m e n tw i t ht h e c h i l d ' s p h y s i c a l s u r r o u n d i ng s, sc ho ol, or oth e r s ig nif

ic ant a c tiv iti e s; (1 1) Th e imp or

tanc e of c on tin uit y in the c hil d' s li fe and

the le ng th o f t ime the c hil d ha s li ve d in

a sta ble , s a tis fa c tor

y e nv ir on me nt; (1 2) Ev ide nc e of

ph y sic a l or

e mot ion a l a

bu se to t he c hil d, to t

he o th er pare nt o r t o any other pe rson; (13) The char acte r and be havior of a ny other pe rson who re sides in or fr equents the home of a pare nt and such pe rson' s interac tions with t he child; (14) The rea sonable pre fer ence of t he child if twelve ( 12) y ear s of ag e or olde r. The court may hear the pre fer ence of a young er c hild upon request. The pre fer ence of older c hildren should normally be g iven g reat er we i gh t than those of young er children;-5- (15) Ea ch par ent' s employ ment schedule , and the court may make a ccommodations consistent with those schedules; a nd (1 6) Any oth e r f a c tor s d e e me d r e le va

nt b y the c ourt

. Simi larl y , w he n c on sid e ri nga c ha ng e of c us tod

y and wh a t is in t

he c hil dr e n’ s b e st i nte re sts , the tr ia l c ourt

is t o c on sid e r t

he fo llo wi ngfa c tor s: (1) The love, af

fec tion and emotional ties exi sting be tween the pare nts and child; (2) The dispositi on of the par ents to provide the c hild with food, clothing, medic al car e, education and other necessa ry car e and the degr ee to whic h a par ent has be en the primary

car eg iver; (3) The importance of continuity in the child' s life and the le ng th of time the child has lived in a stable, satisfa ctory environment; . . . (4 ) T he sta

bil ity of the fa mil y un it o f t he pa re nts ; (5 ) T he me nta l a

nd ph y sic a l he a lth

of the pa re nts ; (6) The home, school and c ommunity rec ord of the c hild; (7)( A) The rea sonable pre fer ence of the c hild if twelve (12) y ear s of ag e or olde r; (B ) The c ourt may

hear the pre fer ence of a yo u n ger child upon reque st. The pref ere nces of

older c hildren should normally be g iven g reater we ight than those of y oung er c hildren; (8) Evide nce of

phy sical or e motional abuse to the child, to the ot her pa rent or to a

ny other pe rson; . . . (9) The char acte r and be havior of a ny other pe rson who re sides in or fr eq u en t s the home of a pare nt and such pe rson' s interac tions with t he child; and (10) Ea ch par ent' s past an d p o t ential for f uture pe rfor

mance of par enting re sp on sib ili tie s, inc lud ingthe wi lli ng ne ss a nd a bil ity of e a c h o f the pare nts to fac ilitate a

nd encour ag e a close and continuing pare nt-child relationship betwe en the child and the other

pare nt, consistent with the best interest of the c hild. Tenn. Code Ann. §36- 6-106(a ).

Reg ardingt he above fac tors, the Trial Court found that both parents loved the-6-

c hil dr e n, bu t the fathe r w a s b e tte r a ble to p ro vid e a

sta ble e nv ir on me nt f

or the m, a nd on e that w ou ld bett er p re pare them for the f uture. The evidenc e esta blished that the fathe r had taken g reater responsibility

for pe rfor ming pa rentingresponsibilities rela ti n g to th e d a ily

needs of the childre n, and was e quipped to provide for their nee ds. The father was as much a primary car eg iver to the c hildren a s t he mothe r, and

of fe re d e vid e nc e of

be tte r c ha

ra c te r a nd e mot ion a l f

itn e ss a s it

re late d to his ability to pare nt and pr o v i de for the childre n. By

rende ring the father the pr imary car eg iver a

nd living with the father, the children would continue in their same community and school, a

nd continue the ir g oo d r e latio ns hip wi th t

he ir g ra ndmot he r, wh o h a d care d for the m for a larg e pa rt of the ir liv e s. Th e so n’ s te a c he r t e sti fi e d th a t th e so n h a d s tr ug g le d in kind e rg art e n, and sw itc hin g sc ho ols wo uld exacer bate his strug g les. Both pare nts had somewhat diff icult job schedules, but the father ha d a better pla n for c hild car e when he was at work ( his mother) rather than mother ’s plan of le avingthe children home alone f

or a shor t period of time eac h day . The son’s tea cher also testified that the son perf ormed be tter at school a

nd was more prepa

red on the wee ks when he was with his fathe r. Considering all of t he evidence that was pre sented, the pr oof pre ponderates in favor of the Tr ial Court’s decision. Tenn. R. App. P. 13(d). Moreove r, the trial c ourt has wide disc retion in custody

matt er s , an d t h e trial court’s dec ision will not be re verse d unless there is an abuse of discretion. Br um it v . B ru mi t , 948 S.W .2d 739 (Tenn. Ct. App. 1997).

Finally , the mother a

rgues the Tr ial Court did not make adequate finding s of fa ct, but a re view of the transcr ipt d em o n s trates that f indings we re ma de which, a lthough they wer e not extensive, were sufficie nt to allow review . The e vidence prese nted a t t h e h ear ing w as also not extensive, but supports the findings and c onclusions rea ched by the Trial Court.
We affir m the primary residential custodian desig nation and visitation schedule, a s mod if ie d b y the Tr ia l J ud g e . T he Tr ia l Co ur t’ s Judg me nt i s a ff

ir me d a nd the c a us e re mand e d, wi th the cost of the a

ppeal a ssessed to J ennife r Shannon Profitt (Melton) Johnson.

_________________________ H ER SCH EL P I CKE N S F RAN KS , P

. J.