IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

March 9, 2016 Session

VICTORIA HOPE MASHBURN v. TYLER DAVID MASHBURN

Appeal from the Domestic Relations Court for Meigs County

No. D-1434 Casey Stokes, Judge

No. E2015-01173-COA-R3-CV-FILED-JUNE 30, 2016

In this divorce action, Tyler David Mashburn (Father) argues that the trial court erred by

including certain provisions in the permanent parenting plan, i.e., (1) a requirement that 

his residential parenting time with the parties’ son be supervised; (2) a provision 

prohibiting Father’s girlfriend from staying overnight during Father’s parenting time; (3)

a provision that Father shall have no additional residential parenting time for holidays or 

vacations unless Victoria Hope Mashburn (Mother) agrees; and (4) a provision that all 

major decisions regarding the child shall be made exclusively by Mother. We modify the 

plan by deleting all of these provisions. Furthermore, we reverse the trial court’s decision 

to award Mother attorney’s fees of $5,000. 

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

Modified in Part and Reversed in Part; Affirmed as Changed by this Opinion; 

Case Remanded for Further Proceedings

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

MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

David L. Valone, Knoxville, Tennessee, for the appellant, Tyler David Mashburn.

Randy G. Rogers, Athens, Tennessee, for the appellee, Victoria Hope Mashburn.

OPINION

I.

The parties were married in May 2007. One child was born to their marriage. 

Mother filed this action for divorce in July 2013. Following a hearing on October 16, 

2013, the trial court entered an order providing a temporary co-parenting schedule 

pending trial. That order provides:
2

That the Father shall have co-parenting time with the 

parties[’] minor child for the next three weekends from 

Saturday at 6:30 p.m. to Sunday at 6:30 p.m. . . . [B]eginning 

the weekend of November 8th the Father will have every 

weekend from Friday at 6:30 p.m. until Sunday at 6:30 p.m. 

The Father will be allowed to pick up the minor child on his 

way from work to his parent’s house in Loudon County, 

Tennessee. Once he has the child he will be required to have 

co-parenting time supervised twenty-four seven (24/7) at his

parent’s residence. That means he is not allowed to have the 

child alone at any time pending further orders of the Court 

except when he picks the child up at the start of his coparenting time.

The trial court did not make any findings explaining why Father’s visitation was required 

to be supervised. There is no transcript of the October 16, 2013 hearing. At this point, 

the only thing in the record pertaining to a supervision requirement was Mother’s 

statement in her complaint as follows:

[Mother] would show that [Father] confessed to [her] that he 

has most recently had suicidal thoughts and that he indicated 

that he would rather commit suicide than continue to be 

married to [Mother].

* * *

[Mother] would show that . . . [Father] should have limited 

co-parenting time with the child based on the child’s tender 

age and that fact that he continues to be nursed and 

conditioned upon the court’s determination that [Father] is 

presently emotionally able to be with the child without 

supervision based on his previous discuss[ion] of suicidal 

thoughts.

On October 14, 2014, Mother filed an “emergency motion” for a temporary order 

suspending Father’s visitation rights. Mother alleged that 

there is reason to believe that the child may have been 

inappropriately touched while during visitation and not under 

the supervision of the designated supervisors or the natural 
3

father of the child and that there is presently an ongoing 

children’s services investigation with regard to the 

allegations. 

The trial took place on December 10, 2014. The primary witnesses were Mother, Father, 

and Amelia Rose, an investigator employed by the Department of Children’s Services 

who conducted a sexual abuse investigation. The paternal grandfather testified briefly. 

Mother’s entire testimony regarding her concerns about the possible treatment of the 

child was as follows:

Q: All right. Tell the Court what your concerns are in every 

respect.

A: In every respect?

Q: Yes.

* * *

A: I mean my concerns are, who is he with, how is he being 

treated, what’s he being given, where is he at, what are people 

doing to him. I mean every concern any parent would have. 

You can imagine your worst nightmare.

Q: . . . If you would, just briefly go through the observations 

you saw when you became alarmed about the child’s 

demeanor.

A: [The child] had started putting stuffed animals on his 

private part, and wanting me to touch him, touching himself, 

and he told me that, you know, if you bite, bite there and he 

was screaming out in his sleep and things as that, you know. 

That’s what he was doing.

* * *

Q: Did you ‒ other than what you’ve described were there 

any other behaviors that you noticed?

A: You know, it’s like the second time he had taken off his 

diaper and that’s when he was wanting me to touch him. And 
4

I put it back on him. And then during the night he must have 

taken it off again because he woke up without it on. He had 

been having problems the last few months with diaper 

changes. I don’t know if that was all related or not, but he’s 

fine with diaper changes now.

Q: Had he ever had a problem with taking his diaper off like 

that before?

A: And wanting it to stay off instead, no.

Mother admitted that she “never reported that [Father] did anything inappropriate;” nor 

did she allege or present proof at trial that anyone else did anything inappropriate with 

the child regarding the allegation in her emergency motion that “there is reason to believe 

that the child may have been inappropriately touched while during visitation.” Father 

testified that, to his knowledge, nothing inappropriate had occurred with the child while 

he was exercising residential parenting time. 

Ms. Rose, the DCS investigator, testified that she conducted a full sexual abuse 

investigation and concluded that the allegations were “unfounded.” She said that Mother 

had expressed her concerns that Father’s girlfriend, referenced in the record by her first 

name, Katrina, might have abused the child. At the time of trial, Katrina had four 

children of her own, including one with Father who was born about ten months after the 

parties in this case separated. Ms. Rose further testified that, based on the results of 

DCS’s investigation, there was no reason to require Father’s visitation with the child to 

be supervised or otherwise restricted. She stated that she found no reason that anyone, 

including Katrina, should be restricted from being around the child. 

Father testified that at times when the child spent the night at the home of Father’s 

parents, he and Katrina stayed in the same room overnight with the child. At this point, 

the child would have been between fourteen and thirty-one months old; he was around

thirteen months at the time of separation, and thirty-one months at the time of trial. At 

trial, Mother presented the theory that the child may have witnessed Father and Katrina 

having sex while he was in their room, which might have accounted for the child’s 

alleged behavior that Mother found disturbing. Father denied that this was a possibility, 

and there was no evidence presented that he and his girlfriend had behaved 

inappropriately in the child’s presence. 

At the conclusion of trial, the trial court made the following oral findings and 

conclusions:
5

There has been – there’s been issues of credibility in this 

case, we all know that. And there’s been an issue with the 

child about, maybe not what [Father] does with the child, but

maybe ‒ seems from the testimony I heard that maybe the 

child has seen something that the child shouldn’t have seen. 

That happened on [Father’s] watch. And there was an issue 

about where Katrina sleeps and [Father] might not have been 

as honest about that as he should have been. And that could 

have been the reason that the child seen [sic] something he 

shouldn’t have seen. So, I think for now, at least a couple of 

years when the child can be more articulate, I think Mr. 

Mashburn should have every other weekend visitation. I 

think it should be supervised.

* * *

I want to put in the order that Katrina can’t spend the night 

over at their house with [Father] on the weekend that he has 

the boy. I think that would prevent him from seeing 

something or whatever that maybe he shouldn’t see.

The trial court ordered Father to pay Mother’s attorney’s fees in the amount of $5,000. 

The permanent parenting plan ordered by the court gives Father visitation from Friday at 

6:00 pm to Sunday at 6:00 pm every other week. It further provides that “[t]here shall be 

no additional co-parenting time for holidays or otherwise, in that the Father shall be 

granted additional co-parenting time at such times as the Mother agrees.” Consequently, 

without Mother’s consent and agreement, Father has no right to see the child on 

Christmas, his birthday, or any other holiday or vacation time. The parenting plan 

mandates that “Father’s co-parenting time shall be supervised by his parents at all times” 

and “[t]he Father’s friend, Katrina, shall not spend the night with the Father when the 

minor child is present.” Father timely filed a notice of appeal.

II.

Father raises the following issues:

1. Whether the trial court erred in requiring Father’s coparenting time to be supervised and ordering that his 

girlfriend could not stay overnight during Father’s coparenting time.
6

2. Whether the trial court erred in ordering that Father would 

have no co-parenting time for holidays or vacations without 

Mother’s agreement, and that major decisions regarding the 

child would be made by Mother instead of jointly.

3. Whether the trial court erred in ordering Father to pay 

Mother’s attorney’s fees.

III.

With regard to all issues in this case, our review is de novo upon the record of the 

proceedings below. However, that record comes to us with a presumption that the trial 

judge’s factual findings are correct. Tenn. R. App. P. 13(d). We must honor this 

presumption unless we find that the evidence preponderates against those findings. Hass 

v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). There is no presumption of correctness 

with respect to the trial court’s conclusions on matters of law, Taylor v. Fezell, 158 

S.W.3d 352, 357 (Tenn. 2005), or on its application of the law to the facts. State v. 

Thacker, 164 S.W.3d 208, 247-48 (Tenn. 2005).

Trial courts are vested with broad discretion in framing parenting plans. Parker v. 

Parker, 986 S.W.2d 557, 563 (Tenn. 1999). We review such determinations under an 

abuse of discretion standard. Id. Under such a standard, a trial court’s ruling “will be 

upheld so long as reasonable minds can disagree as to [the] propriety of the decision 

made.” State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State v. Gilliland, 22 S.W.3d 

266, 273 (Tenn. 2000). A trial court abuses its discretion only when it “applie[s] an 

incorrect legal standard, or reache[s] a decision which is against logic or reasoning that 

cause[s] an injustice to the party complaining.” State v. Shirley, 6 S.W.3d 243, 247 

(Tenn. 1999) (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)).

As this Court has frequently observed,

The central concern in any custody and visitation ruling is the 

best interest of the children. Gaskill v. Gaskill, 936 S.W.2d 

626, 630 (Tenn. Ct. App. 1996). The interest of the parents 

are secondary. Id. “Custodial arrangements should not be 

made with the goal of punishing a parent for misconduct.

Nonetheless, misconduct of a party does often reflect fitness 

of the parent for custody and is a proper consideration.” 

Barnhill v. Barnhill, 826 S.W.2d 443, 453 (Tenn. Ct. App.

1991) (citations omitted). The “details of custody and 

visitation with children are peculiarly within the broad 
7

discretion of the trial judge.” Eldridge v. Eldridge, 42 

S.W.3d 82, 85 (Tenn. 2001) (quoting Edwards v. Edwards, 

501 S.W.2d 283, 291 (Tenn. Ct. App. 1973)).

Miller v. Miller, 336 S.W.3d 578, 583 (Tenn. Ct. App. 2010). We have also stated that 

“[t]rial courts have broad discretion to make decisions regarding parenting arrangements, 

but those determinations must be made based on proof and applicable principles of law.” 

Mobley v. Mobley, No. E2012-00390-COA-R3-CV, 2013 WL 1804189, at *11 (Tenn. Ct. 

App., filed Apr. 30, 2013) (citing Chaffin v. Ellis, 211 S.W.3d 264, 286 (Tenn. Ct. App. 

2006)).

IV.

Tenn. Code Ann. § 36-6-106(a) (2014) directs a trial court to consider the 

following statutory factors in making a custody and visitation determination on the basis 

of the best interest of a child:

(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;

(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[.]

(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;
8

(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. . . .

(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 

interactions 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.

In this case, the trial court did not refer to Tenn. Code Ann. § 36-6-106 or make 

any findings of fact regarding the statutory factors provided therein. As we recently 

observed in Port v. Hatton, No. M2011-01580-COA-R3-CV, 2013 WL 865549, at *6 

(Tenn. Ct. App., filed Mar. 6, 2013), 
9

While the trial court is directed to consider the appropriate 

factors in reaching its decision, it is not required to list each 

factor with the court’s conclusion about how that factor 

impacted the custody decision. 

If the court has not set out specific findings of fact 

incorporating its reasoning about the statutory factors, the 

appeals court may remand the case to the trial court to make 

such findings, . . . or we may ourselves make an independent 

review of the record to determine if it supports the trial 

court’s conclusions.

(Internal citations omitted.) 

Additionally, the General Assembly has directed that every divorce judgment 

“involving a minor child shall incorporate a permanent parenting plan.” Tenn. Code 

Ann. § 36-6-404(a) (2014). In Rountree v. Rountree, 369 S.W.3d 122, 129 (Tenn. Ct. 

App. 2012), this Court stated, 

In fashioning parenting plans, Tennessee Code Annotated 

Section 36-6-401 advises courts that:

The [G]eneral [A]ssembly recognizes the 

fundamental importance of the parent-child 

relationship to the welfare of the child, and the 

relationship between the child and each parent 

should be fostered unless inconsistent with the 

child’s best interests. The best interests of the 

child are served by a parenting arrangement that 

best maintains a child’s emotional growth, 

health and stability, and physical care.

* * *

Most children do best when they receive the 

emotional and financial support of both parents.

Recently our legislature amended the child custody statute to 

include a statement emphasizing this policy. See 2011 Pub. 

Acts, ch. 433, § 1 (effective June 6, 2011). Tennessee Code 
10

Annotated Section 36-6-106(a) now provides, in pertinent 

part:

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 

subdivisions (a)(1)-(10), the location of the 

residences of the parents, the child’s need for 

stability and all other relevant factors.

Accordingly, Tennessee courts must now fashion custody 

arrangements so as to give each parent the maximum amount 

of time possible with the child, in accordance with the child’s 

best interests.

In the present case, Father argues that the trial court’s supervision requirement and 

the provision barring his girlfriend, who is also the mother of his second child, from 

staying overnight during his visitation is unduly restrictive and unwarranted by the 

evidence presented. We agree. Tenn. Code Ann. § 36-6-406 specifically addresses 

restrictions in temporary or permanent parenting plans. It provides:

(a) . . . [A] parent’s residential time as provided in the 

permanent parenting plan or temporary parenting plan shall 

be limited if it is determined by the court, based upon a prior 

order or other reliable evidence, that a parent has engaged in 

any of the following conduct:

(1) Willful abandonment that continues for an 

extended period of time or substantial refusal to 

perform parenting responsibilities; or

(2) Physical or sexual abuse or a pattern of 

emotional abuse of the parent, child or of 

another person living with that child as defined 

in § 36-3-601.

(b) The parent’s residential time with the child shall be 

limited if it is determined by the court, based upon a prior 

order or other reliable evidence, that the parent resides with a 
11

person who has engaged in physical or sexual abuse or a 

pattern of emotional abuse of the parent, child or of another 

person living with that child as defined in § 36-3-601.

(c) If a parent has been convicted as an adult of a sexual 

offense under § 39-15-302, title 39, chapter 17, part 10, or §§ 

39-13-501 ‒ 39-13-511, or has been found to be a sexual 

offender under title 39, chapter 13, part 7, the court shall 

restrain the parent from contact with a child that would 

otherwise be allowed under this part. If a parent resides with 

an adult who has been convicted, or with a juvenile who has 

been adjudicated guilty of a sexual offense under § 39-15-

302, title 39, chapter 17, part 10, or §§ 39-13-501 ‒ 39-13-

511, or who has been found to be a sexual offender under title 

39, chapter 13, part 7, the court shall restrain that parent from 

contact with the child unless the contact occurs outside the 

adult’s or juvenile’s presence and sufficient provisions are 

established to protect the child.

(d) A parent’s involvement or conduct may have an adverse 

effect on the child’s best interest, and the court may preclude 

or limit any provisions of a parenting plan, if any of the 

following limiting factors are found to exist after a hearing:

(1) A parent’s neglect or substantial 

nonperformance of parenting responsibilities;

(2) An emotional or physical impairment that 

interferes with the parent’s performance of 

parenting responsibilities as defined in § 36-6-

402;

(3) An impairment resulting from drug, alcohol, 

or other substance abuse that interferes with the 

performance of parenting responsibilities;

(4) The absence or substantial impairment of 

emotional ties between the parent and the child;
12

(5) The abusive use of conflict by the parent 

that creates the danger of damage to the child’s 

psychological development;

(6) A parent has withheld from the other parent 

access to the child for a protracted period 

without good cause;

(7) A parent’s criminal convictions as they 

relate to such parent’s ability to parent or to the 

welfare of the child; or

(8) Such other factors or conduct as the court 

expressly finds adverse to the best interests of 

the child.

The trial court made no findings with regard to the statutory factors set forth in 

subsections (d)(1)-(8). 

Tennessee appellate courts have addressed the principles that apply to a decision 

to restrict or eliminate a parent’s visitation. In F.A.B. v. D.L.B., a case involving false 

and unfounded allegations of sexual abuse by a parent, this Court said:

“Because of the legal and psychological significance of a 

parent’s visitation rights, persons seeking to restrict or 

eliminate visitation must demonstrate that there is probable 

cause that the child will be placed at risk if visitation is 

permitted.” Bueno v. Todd, No. W2005–02164–COA–R3–

CV, 2006 WL 2106006, at *6 (Tenn. Ct. App.[, filed] July 31, 

2006). . . . These evidentiary standards have effectively 

created a presumption against severely circumscribing or 

denying visitation to non-custodial parents. Such drastic 

measures are only appropriate when arrangements less 

detrimental to the parent-child relationship are not available 

or workable as a practical matter.

This Court has summarized the process for a trial court to 

consider limiting, suspending or terminating all parenting 

time by the alternative residential parent:
13

Accordingly, there is a specific process the trial 

court must follow when limiting, suspending or 

terminating visitation. First, the trial court must 

make a specific finding, based on definite 

evidence, that visitation would cause harm to 

the child. After making this finding, the trial 

court must then determine the least restrictive 

visitation plan as available and practical. In 

determining the least restrictive visitation plan, 

the trial court must make specific findings, 

based on definite evidence, that any less 

restrictive visitation would be harmful to the 

child. The burden of proof on both the issue of 

harm and the least restrictive visitation plan, is 

on the party seeking to restrict visitation.

Rudd [v. Rudd, No. W2011-01007-COA-R3-CV,] 2011 WL 

6777030, at *5 [Tenn. Ct. App., filed Dec. 22, 2011] 

(citations omitted). In considering the issue, the trial court 

must bear in mind that “it is the public policy of the state of 

Tennessee that courts shall grant parenting time with the noncustodial parent unless visitation will harm the child.” Id.

(emphasis in original omitted) (quoting Kershaw v. Kershaw, 

No. M2009–00151–COA–R3–CV, 2009 WL 4039262, at *3 

(Tenn. Ct. App.[, filed] Nov. 20, 2009)).

F.A.B. v. D.L.B., No. M2012-01100-COA-R3-CV, 2013 WL 5872284, at *19-20 (Tenn. 

Ct. App., filed Oct. 29, 2013) (internal quotation marks and citations omitted); see also 

Melvin v. Melvin, 415 S.W.3d 847, 851 (Tenn. Ct. App. 2011) (“Notwithstanding the 

discretion afforded the trial court in matters of child custody, the least restrictive 

visitation limits generally are favored in order to encourage the parent-child 

relationship”); Malmquist v. Malmquist, No. W2007-02373-COA-R3-CV, 2011 WL 

1087206, at *23 (Tenn. Ct. App., filed Mar. 25, 2011) (Tenn. Code Ann. § 36-6-301 

suggests restriction of visitation is appropriate if unsupervised visitation “is likely to 

endanger the child’s physical or emotional health.”); Wix v. Wix, No. M2000-00230-

COA-R3-CV, 2001 WL 219700, at *10 (Tenn. Ct. App., filed Mar. 7, 2001) 

(“Tennessee’s courts have repeatedly recognized that custody and visitation arrangements 

should interfere with the parent-child relationship as little as possible,” but “[t]he courts 

may restrict, suspend, or terminate visitation rights upon the presentation of clear and 

definite evidence that permitting continued visitation will jeopardize the child physically, 

emotionally, or morally”). 
14

In the present case, the trial court ordered that all of Father’s residential parenting 

time be supervised. This is a significant restriction on Father’s visitation. The only 

finding made by the trial court to justify this restriction was its observation, already 

quoted in full above, that “maybe the child has seen something that the child shouldn’t 

have seen.” However, there is no proof in the record that this happened. DCS 

investigator Rose testified as follows:

Q: Do you feel that in this investigation that you did as 

thorough [an] investigation as possible?

A: I don’t know what else I could have done, so yes.

* * *

Q: And your findings were what?

A: Unfounded.

Q: Unfounded. And remember the question I asked you 

about the hypothetical, that the mother was saying that she 

was concerned that this Katrina girl may have done 

something to her son, do you remember that?

A: Correct.

Q: And remember I asked you if you thought something like 

that happened, and you know she has children, correct?

A: Correct.

Q: But you didn’t ‒ DCS did not do anything to think, well, 

we may need to protect those children in her household, did 

you?

A: Correct.

* * *
15

Q: What would the State of Tennessee directed through the 

Department of Children’s Services if they thought something 

was occurring, what would you all have done?

A: There would have been a referral made regarding those 

children.

Q: Did you make a referral relative to those children?

A: I did not.

Q: Have you ‒ did the Department of Children’s Service[s], 

put any restrictions on [Father] as to ‒ in relation to his seeing 

his child?

A: No.

Q: Did you put any restrictions on, and I’m not sure of 

Katrina’s last name, but the individual that’s been referred to 

as Katrina, did you put any restrictions on her as it relates to 

seeing [the child]?

A: No.

On cross-examination, Ms. Rose further stated,

Q: Now, in terms of your interview with Katrina and in terms 

of your interview with [Father], did you discuss with them 

circumstances that might be less than an offensive touching, 

but exposure to sexual activity?

A: I don’t believe I understand your question.

Q: Did you ask them, hey, have you slept together, engaged 

in sex while the child was in the same room with you?

A: I don’t believe I asked those questions.

Q: And certainly as an investigator and a person in your 

position, you would certainly agree that if in fact 

cohabitation, sexual activity occurred in the presence of the 
16

child, that would not be appropriate, would it? . . . Do you 

think people ought to engage in sexual activity in front of a 

child of two and a half years of age?

A: Purposefully, that would be exposure.

Q: Right. And that would be something that you find 

actionable, wouldn’t you?

A: Concerning.

Q: And did you ask them about their sleeping arrangements at 

various locations when they’ve been in the presence of the 

child?

A: As far as the child sleeping in the bedroom with them, no.

Q: If in fact, hypothetically, you had discovered that they in 

fact cohabitated together in a small bedroom with the child 

present, would that have caused you some concerns based 

upon the allegations that were being made?

A: If a two year old child that was sleeping in the same 

bedroom with two adults; is that what you’re asking? That’s 

not necessarily alarming.

* * *

Q: Ma’am, are you telling me as an investigator in this case 

where the allegation is that the child was began ‒ and this is 

what was forwarded to you, that the child began to exhibit 

bizarre behavior like rubbing stuffed animals on his penis, 

taking his diaper off and asking his mother to touch his penis 

in a very unusual way.

A: If the child was awake and they were purposefully having 

sex in front of the child that would be concerning. But if it 

was a situation where they were having sex and they were 

unaware that the child was awake, then that’s not as 

concerning, but that would have been addressed.
17

Q: But that would certainly be a reason that the child had 

developed the problem or the problems, correct?

A: It could.

Q: If the allegation was Katrina bite, bite, and touching his 

penis, then that would indicate that he saw Katrina bite, bite 

someone else’s penis, couldn’t it?

A: It could.

* * *

Q: Did [Mother] tell you that the child indicated that Katrina 

bite, bite, those words, while he was indicating touching on 

his penis?

A: She said that, yes.

Q: And if in fact Katrina was engaged in sexual activity of 

that nature with [Father] in the bedroom, whether it was 

purposeful or not, that would explain something that 

shouldn’t happen in front of the child, wouldn’t it?

A: That would be something that I would address with them.

* * *

Q: How about this, how about I just boil it all down to this.

Do you have any concerns that this young child has had some 

sort of exposure that caused him to exhibit this behavior?

A: He has not reported it to a professional. The only person I 

know that he has said anything to is his mother. The 

background of the case is that there is a custody battle right 

now, and I have told her that we believe there was nothing 

that I found.

Regarding past sleeping arrangements, Father testified as follows:
18

Q: And you acknowledge that you and Katrina, while at your 

parents[’] home when [the child] was there slept in the same 

bedroom together with [the child]?

A: Yes, sir.

Q: Do you know any reason why you told the Judge 

otherwise in our last hearing?

A: I said sometimes she sleeps in another bed and you asked 

another question before I could finish. Sometimes she sleeps 

in there with [her children] because they can’t go to sleep 

because it’s a new environment. Other times she sleeps in the 

room. Sometimes she sleeps in a whole separate room, just 

depends on what all kids are there and what we got going on. 

That’s all. That’s the whole scenario.

* * *

Q: Okay. Have you engaged in sex with Katrina while cohabitating in the same room with [the child]?

A: No, sir.

Q: Never have?

A: No, sir.

There is no evidence contradicting this testimony. As can be seen from the above-quoted 

excerpts, there are hypothetical questions posited by Mother’s attorney that assume the 

contrary, but there is no proof that Father exposed the child to inappropriate behavior, nor 

is there any proof that the child “saw something he shouldn’t have.” 

Regarding the child’s alleged statement, “Katrina bite bite,” Ms. Rose testified 

without objection that Mother had told her the child said it. But Mother did not so testify 

at trial, even when asked to “tell the Court what your concerns are in every respect.” We 

have already quoted Mother’s entire testimony regarding her concerns about the child’s 

behavior. Simply stated, there is no evidence in the record that Father’s unsupervised 

visitation would be harmful to the child. Consequently, we delete from the parenting 

plan the trial court’s order requiring supervised visitation.
19

Father also challenges the provision in the permanent parenting plan that his 

“friend, Katrina, shall not spend the night with the Father when the minor child is 

present.” The only finding made by the trial court in support of this provision was its 

observation that “I think that would prevent [the child] from seeing something or 

whatever that maybe he shouldn’t see.” Father testified that he and Katrina were living 

together in a rented house along with his and Katrina’s child and her other three children. 

He said that the child has his own separate room where he stays during visitation times. 

Given these living arrangements, we must recognize that the restriction on Katrina 

staying overnight during Father’s visitation time is a significant one. It requires the 

mother of four of the children living in the house to be somewhere else overnight.

There is almost no evidence in the record regarding Katrina, and none that 

suggests her presence would pose a risk of harm or detriment to the child. Under these 

circumstances, we delete from the parenting plan the provision forbidding Katrina to 

spend the night with Father when the child is present. See Toyos v. Hammock, No. 

W2011-01649-COA-R3-JV, 2013 WL 177417, at *36-37 (Tenn. Ct. App., filed Jan. 17, 

2013) (vacating overnight “paramour provision” where trial court made no finding that 

allowing parent overnight visitation while a girlfriend was present “would jeopardize the 

child, in either a physical or moral sense”) (internal quotation marks omitted); Small v. 

Small, No. M2009-00248-COA-R3-CV, 2010 WL 334637, at *19 (Tenn. Ct. App., filed 

Jan. 28, 2010) (finding “the trial court abused its discretion by imposing a restriction on 

Husband’s visitation” where there was “no clear and definite evidence suggesting that 

contact with Husband’s girlfriend would jeopardize the child’s health or well-being”); 

Barker v. Chandler, No. W2010-01151-COA-R3-CV, 2010 WL 2593810, at *5-6 (Tenn. 

Ct. App., filed June 29, 2010) (“Finding the record completely devoid of any evidence 

demonstrating that the paramour provision is in the best interests of the children or that 

the presence of Mother’s partner in the home has any harmful effect on the children, we 

find that the trial court abused its discretion”).

Father argues that the trial court erred by including a provision in the parenting 

plan stating that “[t]here shall be no additional co-parenting time for holidays or 

otherwise, in that the Father shall be granted additional co-parenting time at such times as 

the Mother agrees.” The colloquy at trial regarding vacation and holiday visitation for 

Father was as follows:

FATHER’S ATTORNEY: So now we got to talk about

visitation.

THE COURT: Right now I’m going to leave it every other 

weekend.
20

FATHER’S ATTORNEY: So he’s not going to get to see the 

child for Christmas.

MOTHER’S ATTORNEY: She’s willing to work something 

out on that basis.

THE COURT: If she’s willing to work something extra out 

on that, that’s fine with the Court. We’ll get to the base of 

that and I think she probably would be willing to work with 

him some. We’ll leave that to the parties.

This approach might work fine, as long as the parties work together in a 

reasonable and cooperative fashion. If their working relationship sours, however, Mother 

is armed with a court order that grants her the power to deny Father from seeing the child 

on Christmas, birthdays, other holidays, and any additional vacation time. We agree with 

Father that the parenting plan should be crafted to entitle him to reasonable visitation 

time for holidays and vacations, without requiring Mother’s consent. On remand, the 

trial court shall amend the permanent parenting plan so as to provide Father a fair share 

of parenting time on those special occasions. 

Although Father asked that major decisions regarding the child, including those 

involving education, non-emergency health care, religious upbringing, and 

extracurricular activities, be made jointly between the parties, the trial court granted 

Mother sole decision-making authority. There is no evidence in the record supporting 

this decision, and the trial court made no findings of fact regarding why these decisions 

should not be made jointly. We hold that the parenting plan should be modified to allow 

major decisions regarding the child to be made jointly. 

Finally, Father appeals the trial court’s decision to award Mother attorney’s fees in 

the amount of $5,000. The Supreme Court has provided the following guidance on the 

principles applicable to a decision to award a spouse attorney’s fees in a divorce action:

It is well-settled that an award of attorney’s fees in a divorce 

case constitutes alimony in solido. The decision whether to 

award attorney’s fees is within the sound discretion of the 

trial court. As with any alimony award, in deciding whether 

to award attorney’s fees as alimony in solido, the trial court 

should consider the factors enumerated in Tennessee Code 

Annotated section 36-5-121(i). A spouse with adequate 

property and income is not entitled to an award of alimony to 

pay attorney’s fees and expenses. Umstot v. Umstot, 968 
21

S.W.2d 819, 824 (Tenn. Ct. App. 1997). Such awards are 

appropriate only when the spouse seeking them lacks 

sufficient funds to pay his or her own legal expenses, see 

Houghland v. Houghland, 844 S.W.2d 619, 623 (Tenn. Ct.

App. 1992), or the spouse would be required to deplete his or 

her resources in order to pay them, see Harwell v. Harwell, 

612 S.W.2d 182, 185 (Tenn. Ct. App. 1980). Thus, where the 

spouse seeking such an award has demonstrated that he or she 

is financially unable to procure counsel, and where the other 

spouse has the ability to pay, the court may properly grant an 

award of attorney’s fees as alimony. See id. at 185.

Gonsewski v. Gonsewski, 350 S.W.3d 99, 113 (Tenn. 2011) (internal citations omitted). 

The statutory factors that must be considered are as follows:

(i) In determining whether the granting of an order for 

payment of support and maintenance to a party is appropriate, 

and in determining the nature, amount, length of term, and 

manner of payment, the court shall consider all relevant 

factors, including:

(1) The relative earning capacity, obligations, 

needs, and financial resources of each party, 

including income from pension, profit sharing 

or retirement plans and all other sources;

(2) The relative education and training of each 

party, the ability and opportunity of each party 

to secure such education and training, and the 

necessity of a party to secure further education 

and training to improve such party's earnings 

capacity to a reasonable level;

(3) The duration of the marriage;

(4) The age and mental condition of each party;

(5) The physical condition of each party, 

including, but not limited to, physical disability 
22

or incapacity due to a chronic debilitating 

disease;

(6) The extent to which it would be undesirable 

for a party to seek employment outside the 

home, because such party will be custodian of a 

minor child of the marriage;

(7) The separate assets of each party, both real 

and personal, tangible and intangible;

(8) The provisions made with regard to the 

marital property, as defined in § 36-4-121;

(9) The standard of living of the parties 

established during the marriage;

(10) The extent to which each party has made 

such tangible and intangible contributions to the 

marriage as monetary and homemaker 

contributions, and tangible and intangible 

contributions by a party to the education, 

training or increased earning power of the other 

party;

(11) The relative fault of the parties, in cases 

where the court, in its discretion, deems it 

appropriate to do so; and

(12) Such other factors, including the tax 

consequences to each party, as are necessary to 

consider the equities between the parties.

Tenn. Code Ann. § 36-5-121(i). In the present case, the trial court did not refer to this 

statute, or to any of the factors provided therein, in its final judgment of divorce. The 

divorce judgment states only, “[t]he Court finds that this is not an appropriate case for 

alimony and none is awarded,” and “[t]he [Mother’s] counsel is hereby awarded a 

judgment in the amount of $5,000.00 for attorney’s fees for his representation of the 

[Mother] in this case.” 
23

In Miller, we stated that “[w]here the parenting arrangement on which the award 

of fees is based is reversed on appeal, it is seldom proper to affirm the award of 

attorney’s fees.” 336 S.W.3d at 586, citing Placencia v. Placencia, 3 S.W.3d 497, 504 

(Tenn. Ct. App. 1999) and Tarkington v. Tarkington, No. M2002–01914–R3–CV, 2003 

WL 22251339, at *4 (Tenn. Ct. App., filed Oct. 2, 2003). In this case, where there was 

no showing or finding that Mother lacks sufficient funds to pay her own legal expenses, 

or would be required to deplete her resources in order to pay them, no finding regarding 

Father’s ability to pay, no alimony award, and Father was entirely successful on this 

appeal in challenging the parenting plan provisions at issue, we find it appropriate to 

reverse the award of attorney’s fees to Mother.

V.

The provisions of the trial court’s judgment and the incorporated permanent 

parenting plan are modified to deleted the provisions (1) requiring supervision of Father’s 

visitation; (2) disallowing Father’s girlfriend Katrina from spending overnight during 

visitation; (3) ruling that Father shall have no additional co-parenting time for holidays or 

otherwise without Mother’s agreement; and (4) granting Mother sole authority to make 

major decisions regarding the child. The trial court is directed on remand to enter a 

revised parenting plan providing for joint decision-making on major decisions, and 

granting Father reasonable visitation for holidays and vacation times. The award of 

attorney’s fees to Victoria Hope Mashburn is reversed. Costs on appeal are assessed to 

the appellee, Victoria Hope Mashburn.

_______________________________

 CHARLES D. SUSANO, JR., JUDGE