# FILED January 16, 1998 Cecil W. Crowson Appellate Cou rt Clerk JODY TRISTAN SMILEY and ) BEVERLY JO SIMPSON, ) ) Davidson Juvenile Plaintiffs/Appellants

, ) No. 9619-17777

) VS. ) ) Appeal No. STACY MARCH WALK ER HANNAH, ) 01A01-9704-JV-00164 in behalf of TRISTAN JAMES ) WALKER, ) ) Defendant/Appellee. )

IN THE COURT OF AP PEALS OF TENNESSEE MIDDLE SECTION AT NASH VILLE APPEAL FROM

JUVENILE COURT OF D AVIDSON COUNTY AT NASHVILLE, TENNESSEE HONORABLE ANDREW J . SHOOKHOFF, JUDGE

Edward J. Gross, #2872 Parkway Towers, Suite 1601 Nashville, TN 37219 ATTORNEY FOR PLAINTIF FS/APPELLANTS Peggy D. Mathes, #5741 Washington Square Building, Suite 105 214 Second Avenue

North Nashville, TN 37201 ATTORNEY FOR DEFENDANT/APPELLEE



### AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR: BEN H. CANTRELL, JUDGE CONCUR IN SEPARATE OPINION: WILLIA M C. KOCH, JR., JUDGE-2-

JODY TRISTAN SMILEY and ) BEVERLY JO SIMPSON, ) ) Davidson Juvenile Plaintiffs/Appellants

, ) No. 9619-17777

) VS. ) ) Appeal No. STACY MARCH WALK ER HANNAH, ) 01A01-9704-JV-00164 in behalf of TRISTAN JAMES ) WALKER, ) ) Defendant/Appellee. )



## O P I N I O N

In this legitimation proceeding, the father, Jody Tristan Smi

ley and his mo

ther, Beverly J. Simpson, have appealed from the jud gmen t of the Juvenile Court awarding custody of the child, Tristan James Walker , aged 6, to

the mother Stacy March Walker Hannah, and specified visitation to the father, Jody Tristan Walker.

A detailed rec itat ion of the backg round facts and p

roceedings in th

e Juvenile Court is necessary for a disposition of

this appeal.

The child, Tristan, was conceived while the mother, Stacy and the father Jody , were classmates in hig

h school.

The father, Jody, has lived with his mo ther, Mrs. Simpson, all his life in a home in which his mother operates a beauty salon.

At the time of the birth of the child, Tristan, the mother of the child, S t acy Walker, resided with her mother and father, Jerry and L ora Walker.-3- After the birth of the child, the mother of the child, Stacy, moved out of h er parent’s hometo the apartment of a cousin from May

to July, 1995; and thereafter mother and child lived withthe father, Jody, and his mother, Mrs. Simpson. The mother, S tacy, and child, Tristan, moved back into the h ome of her parents fro

m October to Christm

as, 1995. From Chr

istmas, to July 8, 1996, the mother, Stacy, lived with J ames H annah. During this period, the mother, Sta cy, frequently

entrusted the chi

ld to its paternal grandmother, Mrs. Simpson, for day care and sometimes Stacy

stayed with t

he child in Mrs. Simps

on’s home overnig

ht.

On July 8, 1996, the mother, Stacy, and her live-in companion were married, Neither the briefs nor the record explain the use of the name, Walker, in identifying the child.

On July 11, 1996, the present proceeding was initiated, identifying the mother as Stacy Marcy Wal ker, an d the child as Tristan James Walker. The petition of Jody and his mother alleged that bruises and contusions had been observed on the lower parts of the child’s body and that the child was no l onge r le ft i n th e car e of i ts f ath er, J ody, and grandmother, Mrs. Simpson.

The pet iti on p rayed tha t Jo dy Sm ile y b e adj udged to be the f ather of the chil

d, that his name be changed to Tristan James Smiley and that birth records be adjusted accordingly. The petition also pray

ed that custody

of the child be ent

rusted to the petiti

oners.

The answer of Stacy Marchelle Hannah, asserted tha t this was her

correct name, admitted that Jody Smiley

was the father o

f the child, Trista

n, denied the alle

ged bruises and

contusions, and denied that the name of the child should be changed. By c ounterclaim, the mother prayed for support for th

e child and attorn

eys fees.
Upon hearin g the cause, t he Juveni le Referee fi led a final o rder statin g:

The Court therefore finds and decrees that Jody Tristan Smiley is the lawful father of Tristan James Walker, andthat th e rela

tionship of parent and child is hereby established between them for all lawful pur

poses. Upon the-4- parties agreement an

nounced in open c

ourt, the child’s n

ame is hereby changed to TRISTAN JAMES SMI LEY.

- - - - The Court finds that, since his birth, T ristan James Walker has spent substanti

al periods of time w

ith both his moth e r and father, living in their respective homes for extended periods.

- - - - Since primary care for the child in the father’s home would be p rov ide d by t he child’s grandmother, and primary carefor the child in his mother’s home would be provided by his m other, the Court deems the mother’s home to be th e appropriate

choice in this car

e. Custody of

the child is therefore awarded to the child’s mother.

- - - - As of the date of this

order, the child’ s father shall begin paying ch

ild support as requ

ir ed b y t he current TennesseeChild Support Guidelines. Based upon his income of $328.00 per week, his monthly child support obligation is hereby established at $243.00 plus 5% c lerk ’s fee. His first payment s hall cover the period beginning October 15, 1996 andending November

15, 1996; that payment shall be due no later than November 1. All payments thereafter shall be due on the first o f each m onth and will be pai d by Inc ome Assignment

Order directed to hi s employer, Hornbuckle Plumbing Com pan y. Ad dit ion all y, Jo dy Smiley shall be required to maintain health insurance on the minor child and shallbe responsible for

payment of one-half of any medical or dental expenses not covered by his insurance. Add iti ona lly, JodySmiley will cooperate with any procedure required for the child’s mother to obtain a life insurance policy insu ring the life of the fathe

r to cover the chi

ldsuppor t obligation in the even t of his deat h pr ior the chi ld’ s ma jor ity. The father shall

have visitation as

follows: (1) Every

other weekend beginning at 5:00 p.m. on Friday unt il 6 :00 p.m . on Sun day; (2) Every

Father’s Day

from 9:00 a.m. until 6:00 p.m. (Except when F at her’s Day falls on his scheduled weekend); (3) Alternating holi

days; (4) The chi ld’ s bi rth day al ter nat ing a nnu all y; (5) One full week during each of the months of June,

July andAugust each year, to be determinedby agreement of the pa rties . If

no agreement is r

eached by June 1st of eachyear, the v

isits shall begin

at 6:00 p.m. on the first Sunday of each month, and end at 6:00 p.m. on the second Sunday of each month; (6) Any other tim

e by agre ement of the part

ies.-5- Courtcosts in this matter, in the amount of $75.00 are assessedjointed and sever ally against the fat her, Jod y Smi ley, andthe paternal grand

mother , Beve rly Jo Simpson, for which exe cut ion may i ssu e ifnece ssa ry. The Juvenile Judge affirmed the order of the Referee.
On appeal to this Court, the appellants present the following issues for review:

1. The Court erred in fin ding that it

wa s impo ssible

to determine which parent had provided the majority of support and supp l ied the majority of parenting since the birth of the minor child. 2. The Court er

red in finding that there was no evidenceto indicate that the mother of the child

is incapable of providing for the needs of the child in her home. 3. The Court erred in fin ding that both homes appeared equal i n the capacity to provide a loving and appropriate

atmosphere for the four (4) year oldminor child. Therefore, custody shou

ldbe aw arded to the mother rather th an the father beca

use “primary

care for the ch

il d in th e fa ther’s home would be provided by the chi ld’ s grandmother.” Appellants

first complain of the finding that it was impossible to determine which parent hadprovided the majority of support and parenting. Rule 6(a)(1) of the Rules of this Court requires the app ellant cite the page o f the record whe

re erroneous a

ction of the Trial

Court is recorded. No su

ch citation is

found in appellant’s brie

f. No such errone

ous action is found i

n the record.

The first issue the

refore does not p

resent ground f

or reversal.
Appellants

nex t compl ain that the Juvenile Court failed to find that Mrs. Hannah was incapable of providing for

the child in her hom

e. i. e., that she was competent to care for the child. There is no citation to the record supporting this complaint, and the alleged finding is not found in the record.-6- No basis is found for reversal for this alleged error.

Fin all y, appel lants insist that the Trial Court found that custody by the mother was preferable

to custody by

the father beca

use the mother was a pare nt of the child and the grandmother

was not. Until shown otherwise, courts must assume that parents are more suitable custodians because of the closer blood relationship and the natural tendency of a child to look to its parents for love and protection.

The evidence regarding the source of the child’s bruises is controverted. Mrs. Simpson testified that the child was no t injured while in petitioners custody and implied, (but did not prove), that Mr. H

annah perpetra

ted the injuries.

Mr. Hannah’s response to the hearsay accusation of t he chil d was, “maybe I did and maybe I didn ’t.” However, the refusal to admit or deny under the circumstances was not an admission of guilt. The court should not haveaccepted such a noncommittal response, but, upon proper request, should have required an unconditional answer.

Th e mother of the child cites authorities holding that in adoptions and paren tal right s termination, a natural paren t must be proven unf

it before being

depriv ed o f parental rig hts. However, the present case is a legitimation case in which the contenders a

re both natural pa

rents, the maternal grandmother has made common cause with her son,the natural father of the child, and the husband of

the mother of the c

hild has testified i

n support of her c

laims.

In the present case, the Trial Court found that neither natural parent of the child has been proven unfit. Even though the fitness of the maternal grandmother and the stepfather have not been shown to be equal,

the Trial Judge wa

s not able to fin

d gro unds to declare the natural mother unfit because of the conduct of her husband. The evidence do es not preponder

ate against the finding of the TrialCourt as to fitness of the natural parents, and the evidence does not justify-7-

a reversal of the exercise of discretion by the Tri al Judge in r espect to principal custody. The decision of the Trial Court in respect to the credibility and wei ght of testimony is generally entitled to great weight on appeal. TRAP Rule 13(d); Grand Valley Lakes Prope rty Owne rs Assn., Inc., v. Cary , Tenn. App. 1994, 897 S.W.2d 262; Gilliam v. Gilliam , Tenn. App. 1988, 776 S.W.2d 81.

The most appropriate admonition to all parties is found in Nale v. Robertson , Tenn. 1994, 871 S.W.2d 675 as follo

ws: No reason occurs to this Court why a fit parent shoul

d be denied the privile

ge of parentho

od merely be

cause of birth outof wedlock. As previously stated, the denial of privile ge of parenthood is b

ased upon termina

tion for unfitness.

- - - - The Court recognizes that, in this case as in many others, resoluti on of the legal issues does not mediate the harm exp eri ence d by t he partie s. We, outside our role as judges, can only

implor e the healing ba

lm of love which all the parties obviously have bestowed upon David.
All parties should be aware of the continuing power of the Trial Court to ad judge custody andvisitation of this child in accordance with their future behavior andthe best interests of the child.

The judgment of the T rial Court is affir

med. Costs of this app

eal are taxed ag

ainst appellants and the

ir surety. T

he cause is rema

nded to the Trial Co

urt for further p

roceedings. 

### AFFIRMED AND REMAND ED .

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION CONCUR:
BEN H. CANTRELL, JUDGE
CONCUR IN SEPARATE OPINION WILLIA M C. KOCH, JR., JUDGE-8-