### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Novem ber 14, 200 2 Session

ALICA DELANE RAKESTRAW v. GREGORY KEI TH RAKESTRAW

Appeal from the Circuit Court for Bradley County No. V-00-1003 Jerri S. Bryant, Chancellor

FILED MARCH 18, 2003

No. E2002-01151-COA-R3-CV

The sole issue

in this divor

ce case is whethe

r the Tri a l Court reache d the correct decision regarding custody of the par

ties’ child. The Cou rt gra nted prima

ry custodia l care o f the par

ties’ daughter, Kendra

Paige Ra kestraw , then 10 y

ears old , to Gregory

Keith Rakestraw (“Father”). Alica Delane Rakestraw (“Mother”) arg ues on appeal that the evidence prepondera tes against the Court’s exercise of discr etion in re

ndering it s c us to dy decision, and that the Court erred in deny ing her motion to alter or amend the judgment and her motion for a ne w trial. We affirm the judgment of the Tria l Court in a

ll respects.

Tenn.R.App. P. 3 Appe al as of Right ; Judgme nt of the Cir

cuit Cour

t Affirme d; Cause Remanded

H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS and C HARLES D. S USANO , J R ., JJ., joined.

Ashley L . Ownby, Cleveland, f or the Appellant, Alica Delane Rakestraw

James F. Logan, Jr., Cleveland, for the A ppellee, Gregory

Keith Rakestraw

MEMORAN

DUM OP

INION

Mother filed for divorce on November 13, 2000. A hear ing was conducted on Augus t 9, 2001, for the sole purpose of determining custodial and visitation arrang ements for Kendra. Prior to the part

i es’ se paration and divorce, they had lived in Georgetown, in Bradley County. At the hearing the Mother testified that she had moved to Chattanooga in order to be closer to her place of employment, and that she intended to e nroll Kendra in a private school in Chattanooga.

After hearing proof from both parties, the Trial Court held that pr imary custodial ca

re and responsi bility should be with the Father. The Court gran ted t he Mother visitation on every other-2-

weekend from Friday

evening until Monday morning , and also on every Tuesday e

vening. The Trial Court found as follo ws in rele vant par t:

I will say that most a

ll factor s are sub stantiall y equal wi th both parents

. I’m supposed to be judging the compara

tive fitne ss of these parties. There is no one tha t I ha ve found to be unfit. I

believe either by stipulation and by testimony of the parties that this child has love and affec tion and e

motional ti es to both p arents a n d both par

ents to this child. The disposition of the parents to provide the child with food, cloth ing, medical care, educati on, that se ems to be on a su bstantially equal factor

for both p arties. The wife has been the primary ca

regiver for part of the child’s life, assisted by the husband. The husband has taken on a greater deg

ree even from

the temporary

hearing forward. I thin k he has th

e dispositi on to be a p

rimary caregiver as w ell.

* * * I think the character and

behavior of both parties is exemplary . . .You bothseem willing to facilitate and encoura ge a c lose relation ship with the other parent

and both seem willing to take the best interest of the child at heart. All of that being substantially e qual, I’m disturbed

tha t this could not have beenworked out. I wish that y ou-all would choose a place to live where you w ere closer together so that you co uld have substantia lly equal co-parenting time because I think y ou’re bo th pretty g ood parents, but choosing to live in Chattanooga makes that distance harder to deal with logi stically so I think the final factor that I have to come downto is number three, the importanceof contin uity in the child ’s life a

nd the len gth of ti me the child has lived in a stable, satisfactory

environment. It’s interesting w hen you try to define the word sati sfactor

y e nvironme nt. I find that it’s in

the best in

terest of the child at this time

to remain near her family

and friends and ente

r the sch ool here

that is accredited. I

think the father seem s to be clo ser to the larg er famil y unit which has had a significant influence on this child’s life and [has] been a signi fica nt part of this child’s life. I believe the community

and scho ol in the B lack Fo x area ar e more c onducive

to the advancement and nurturing of this child.

On appeal, Mother raises the following issue, as taken f rom her brief: “whether the Trial Courterred in granting custody to the Father where the preponder ance of the evidence shows that the continuity in the child’s life would be better served by a

warding custody

to the Mother.”-3-

In the recent case of Eldridge v. Eldridge , 42 S.W.3d 82 (Tenn.2 001), the

Su p reme Court made the following

pertine nt stateme

nts:

The Court of Appeals correctly held that the standard fo

r appell ate review of a trial co urt's c hil d visitation order is controlled by our decision in Suttles v. Suttles , 748 S.W.2d 427, 429 (Ten n.1988). There, we noted

that " ' the deta

ils of cust

ody and visita

tion with children are pec

uliarly with in th e broad discr etion of the trial judge. '" Id

. at 429 (quot ing Edwards v. Edwards , 501 S.W.2d 283, 291 (Tenn.Ct.App .1973 )). Accord ingly, we h eld th at a "tr ial co urt's decision [on v is itation] wil l not ordin arily be reve rsed abs ent some abuse of that discretion ." Id. I n reviewing the trial court's visitation order f or an abuse of discretion, the child 's welf are is given "paramount consideration," id

. (quoting Luke v. Luke , 651 S.W.2d 21 9 , 221 (Tenn.1983)), and "the right of the noncustodia

l parent to reaso nable vis itation is cl early favored." Id. Nevertheless, the noncustodial parent's visitation "may be limited, or

eliminate d, if ther

e is defin ite evide nce that to permit ... the right would jeopardize the child, in either a phy sical or mor a l sense." Id. (quot ing Weaver v. W eaver , 37 Tenn.App. 195, 261 S.W.2d 145, 148 (1953)). Under the abuse of discretion standard, a trial cour t's rul ing "will be upheld so long as reasonable minds c an disag ree as t o proprie ty of the decisi on made." State v. S cott , 33 S.W.3 d 746, 752 (Tenn.2000); State v. Gilliland , 22 S.W.3d 266, 273 (Tenn.2000). A trial court abuses its discretion only whe n it "applie[s] an incorrect legal standard, or reache[s] a decision which is against log ic or reasoning that cause[s] an injustice to the party complaining." State

v. Shirley , 6 S.W.3d 243, 247 (Tenn.199 9). Th e abuse of discretion standarddoes not permit the appellate court to substitute its judgment for that of the trial court. Myint v. Allstate Ins. Co.
, 970 S.W.2d 920, 927 (Tenn.1998).

Eldridge , 42 S.W.3d at 85.

We have reviewed the record with the a bove standard in mind and find that the Trial Court properl y considered

the appropriate statutory

factors found at T.C.A. 36-6-106, and that the evidence does not preponderate against its ruling. The r ecord demonstrates that the Court was faced with the fortunate, yet difficult, prospect of deciding which of two competent and

loving parents would be the primary

custodia l parent . We, who c annot subs titute our judgmen t for that of the Tr ial Court, find no error in the Court’s decision that the Father should serve in that role. It is apparent that the Court’s primary consider ation was the best interest of Kendra.-4-

The Mother also raises the question of whether the Trial Court erred in deny ing her motions to alter or amend its judgment and for a new tria l. T he all eged grounds for these motions are as follows: “ the nat ural Mother has returned to Bradley County and from information and be lief the Father has been in tentiona

lly k eeping the minor c

hild away from the M other.” Through these motions the Mother requested the Cour t “to giv e mo re equal parenting time to the Mother and require the minor child to spend the majority of time with the natura l mother, due to the fact she was the primary ca

retaker of the

child from birth.” We find and hold that the disposition of these motions is a matter w hich fal ls within the sound disc

retion of the Tria l Court, an d that it did

not abuse

it s discretion in denying the

m. We further find that this is an appropriate case for affirmance under Rule 10 of

this Court.

For the foregoing reasons the judg ment of the Trial Court is affirmed and the cause remanded for collection of costs below. Costs of appeal are adjudge d against the Appellant, Alica Delane Rakestraw, and her surety

.

_________________________________________ HOUSTON M. GODDARD, PRESIDI NG JUDGE