### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Decem ber 13, 200 2 Session FERRY L THERE SITA Mc CLAIN v. RIC HARD P

ERRY McCLA IN Appeal from the Circuit Court for Sullivan County No. C2697 John S. McLellan III, Judge FILED MARCH 21, 2003 No. E2002-00913-COA-R3-CV

This is a divorce case. The trial court dissolved the parties’ marriage based upon a stipulated ground for divorce; divided the marital property; and a warded Richard

Perry McClain (“

Father”) primary physical custody of the par

ties’ two minor children. Ferry l Theres ita McCla

in (“Mother”) a

ppeals the grant of custody

to Father. In addition, she ra ises several procedural issues. We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed; Case Remanded C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in whichH OUSTON M. G ODDARD , P.J., and H ERSCHEL P. F RANKS , J., joined. Leslie W. Bailey , Jr., Kingsport, Tennessee, for the appellant, Fer ryl There sita McClain. Keith A. Hopson, Kingsport, Tennessee, for the a ppellee, Richard Perry

McClain. OPINION
I.
The parties were married on Febr uary 2, 1991. Two child

ren wer e born to t heir unio n, Bret

t Aaron McClain ( DOB: Aug ust 11, 199 8) and Cha se Ryan McClain (DOB : June 4, 2000). Mother was a licens ed pharmacist, bu t she appa rently did not work as such after th e birth of the part ies’ fir st child. Mother andFather c o-owned a computer information sy stems company. The c ompany solicited contracts from l arge corporations to integrate their computer sy stems. Father did all of the hands-on work for the company , traveling to the various client sites. Mother assisted with the bookkeeping.
In April, 1999, following an argument betwee n the parties as to whether Mother should travel to Ohio to see

her brot her’s ne wborn ba by, Mother wi

thdrew $ 5,000 fro m the par ties’ joint bank accoun t, and took eight-month-old Brett and drove to Ohio, w ithout informing Father. Mother1 Mother test ifi ed that she i s a st

rong beli ever i n the power of herb al med ication and th at she p refers to avoid administering anti bioti cs to t he chil dren when t

hey are il l. On cr oss-ex aminati on, Mother admitted th at she had not gi ven Brett the anti biotics prescri bed for him by a doctor to clear up an infecti on. -2- contends that she and Father were having problems and that she “needed some time aw ay from him to th in k. ” M ot he r l ef

t o n a Fr id ay a nd re tu rn ed to Ki ng sp or t t he fo ll ow in g M on da y. Later that same month, Mother

voluntar ily a dmitted he

rself to I ndian Path

Pavilion Ho spital, suffering from depression. As a part of her hospitalization, she sought help in coping with emotional issues as so ci at ed wi th he r m ar ri ag e. Sh e w as ev al ua te d b y a psych iatric social worker who later testified at trial tha t Mother w as not suic idal and t hat she po sed no ris k of harm to herself or to others.
On June 1, 1999, Mo ther file d for divo rce on th e grou nd of inap

propria te marita l conduct

. A few months later, Mother learned that she was pre gnant with the parties’ second chi ld . In November, 1999, at the parties’ request, the tr ial court entered an order of re conciliation, which expressly suspendedthe divorce proceedings for six months. The parties’ second child, Chase, was born the following June.
In July, 2000, the parties and their childre n went to Louisiana. The purpose of the trip wa s to attempt to reconcile Mothe

r with her estrang ed fathe

r at a fa mily reunion. While in

Louisiana, the parties had several disagreements, which r esulted in Mother leaving Louisiana with Chase and flying to Houston to

stay with her s ister and

brother -in-la w. Fat her returned to Kingsport with Brett. A week and a half later, Father flew to Houston with Brett. When the parties met in Houston, Mother told Father that she was tak

ing the chi ldren and driving to her sist

er’s hou se to spend the nig ht. Mother assured Father that she and the children w ould return the next day at 1:00 p.m. D espite thi s under stand ing, Mothe r cha nged her mind, after deciding that she needed some time away from Father. Acting on the ad vi ce of he r t he n- at to rn ey, she withdrew $50,000 from the parties’ joint bank accoun t, took the children, and

drove to Austin to stay with a friend. Mothe r did notcontact Father to tell him she was taking this action. While Mother’s sister and brother-in-law knew whe re Mother was, they we

re instructed by Mothe

r not to tell Father. Three weeks later, Mother returned to Houstonwith the children. During the entire threeweek time period, Father had no idea where Mothe r and the children

were. While sh e w as aw ay, Mother filed a motion to set aside the order of reconciliation. Father answ ered the divorce complaint and filed a counterclaim for divorce, which wa s also premised up on the gro und of ina

ppropria te marital c onduct.
In Sept ember, 2000, the tr ial co urt he ld hea rings f or the sole p urpos e of det ermin ing a temporary

parenting plan. At the conclusion of the hea rings, the cou rt entered an order on September

18, 2000, in which it named Father the temporary

primary re sidential parent. The court basedits decision on numerous factors, including Mother’s health ca re ph il os op hy, 1 the court’s concer n about Mot

her’s me ntal well -being , and its concernabout Mother secreting the children at-3-

locations unknown to Father. Mother was granted visitation with the children every other weekend from 6:00 p.m. on

Friday until 7:00 p .m. on Sunday , and on weekday s from 3:00 p.m. until 7 :00 p.m.
A fu rt he r h ea ri ng wa s c on du ct ed by t he tr ia l c ou rt in Ju ly, 2001. On July 31, 2001, the court entere d a judgment of divorce, which gra nted the parties a divorce on a stipulated ground a n d divided the parties’ marital property

. The ju dgment a lso modifie d the visita

tion arra ngemen t to re flectthe fac t that the older child was then in day care. The court noted that Father remained the primary re sidential parent of the children. In September, 2001, following a nother hearing, the court designate d Father as theprimary residential parent o f th e childr en, granted Mother certain visitation rig hts, and adopted Father’s proposedparenting plan. The court’s ruling w as memorialized by a final or der in December, 2001. Following the entry of tha t order, Mother filed a motion for a new trial, which she later amended. At the conclusion of a hearing on Mother’s motion, the trial court denied the motion in full. This appeal followed.
II.
In this non-ju

ry case, ou r revie w is de novo on the record of the proceeding s below; however, the record

comes to u s accomp anied by a presum ption of c orrect

ness as to the trial court’s factual finding s, a presumption that we must honor unless the evidence prepond erates agains t those findings. Tenn. R. App. P. 13(d). We review the trial court’s conclusions of law de novo with no presumption of correctness. Jahn v. Jahn , 932 S.W.2d 939, 941 (Tenn. Ct. App. 1996). Our search

for the preponderance of the e vidence is tempered by

the principle that

the trial court is in the best position to assess the credibility of th e witnesses; accordingly , such determinations are entitled to great weig hton appeal. Massengalev. Masseng ale , 915 S.W.2d 818, 819 (Ten n. Ct. App. 1995); Bowman v. Bowman , 836 S.W.2d 563, 567 (Tenn. Ct. App. 1991).
III. Mother argues that the evidence preponderates ag ainst the trial court’s designation of Father as the primary

residential parent

of the children. In support of he r argument, Mother asserts that she has been the primary

caregiver for the

children since their respective births; that she is a good mother and is available during the day time to care for the children; that she has done more t o enco urage a close parent-child relationship between the children and Fat her th an Fath er has d one to encou rage their relation ship with he

r; and tha

t, prior to

the part ies’ sep aration , Fathe

r’s work schedule prevented him from spending much time with the children.
A trial court

has broad discretion regarding a custody deter

mination. Brumit v. Brumit , 948 S.W.2d 739, 740 ( Tenn. Ct. A pp. 1997) ; Varley v. V

arley , 934 S .W.2d 659, 665 (Tenn. Ct. App. 1996); Marmino v. Mar

mino , 34 Tenn. App. 352, 355, 238 S.W.2d 105, 107 (1950). We will not disturb such a d etermination unless the record reflects an “ erroneous exercise of that discretion.”-4-

Mimm s v. M

imms , 780 S.W.2d 739, 744-45 (Tenn. Ct. App. 1989). “Absent some compelling reason otherwis e, consid

erable weight must be g iven to th e judgment of a trial court in a divorce proceeding in respect to the credibility of the parties and their suitability as c ustodians.” Id. at 744. There are “[n]o hard and fast rules . . . for dete rmining which custody and visitation arrangement

will best serve a child’s nee ds.” Gaskill v. Gaskill , 936 S.W.2d 6 26, 630 (Tenn. Ct. App. 1996). A custody dete rmination is “factually dr iven” and “requires the court s to carefully weigh numerous considerations.” Id. The overriding consideration is the best interest of the child. Id.
The factor s a trial c ourt must c onsider in determ ining the custody of childr en, to the extent that they are pertinent in a given case, are set forth in Tenn. Code Ann. § 36-6-106 (2001), which provides , in pertin

ent part , as follo ws: (a) In a suit for a

nnulment, divorce, separate maintenance, or in any other proceeding requiring thecourt to make a custody determination regarding a minor

child, such determination shall be made upon the basis of the best interest of the child. The cour t shall consider

all relevant factors including the following w here applicable: ( 1) The love, affection and emotional ties existing between the parents and child; (2) The dispo sition of th e paren ts to provid

e th e child w ith food, cloth ing, medical care, education and ot he r necessary

care and the degree to which a pare

nt has been the primary

caregiver; (3) The importanc e of cont inuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment; . . . . (4) The s tability

of the fa mily unit of the

parents ; (5) The m ental an d phy sical he alth of the parents ; (6) The home, school and community record of the child; (7) The reasonable prefere nce of the child if twelve (12) years of age or older. The court may

hear the preference of a

younge r child upon request

. The preferenc es of olde r childre n should no

rmally be given greater weight than those of younge r children; (8) Evidence of phy sical or emotional abuse to the child, to the other parent or to any

other person; . . . .-5- (9) The character and behavior of any other

person who resides in or freque nts the home of a parent and such person’s interac tions with the child; and (1 0) Ea ch parent’s past and potential for future perf ormance of parenting responsibilities, including the willingness and ability of eachof the parents to facilitate and encourage a close a

nd continuing parent- child

relation ship between the ch ild and the

oth er parent, consistent with the best interest of the child. In the September, 2001, hear ing, the trial court, in determining the is su e o f c us to dy, found as follow s: You know, lo okin g at the factors under [Tenn. Code Ann. §] 36-6-

106 again, one, as far as love and affection between the pare nts and children, that’s equal; Number 2, disposition of the parents to provide the child with food, clothing, medical care, educa tion, et cetera, I feel under the proof here tod ay

that’s eq ual; Numbe

r 3, and I guess th is goes to [the social worker’s] testimony, importance of a continuity

in a child’s life in the length of time the child has lived in a stabl e satisfactory

environment. And[the social worker] has testified that the childre

n are pr ofiting wellunder this and have become used to the routine that’s cu

rrently set. Item 4, the stability of the family unit of the parents

. Of course living here in Kingsport, [Fathe r] has more of a family unit here in place as [Mother ’s] family

is primaril

y in other state –or states . Ite

m 5, the me

ntal and phys ical hea

lth of the p arents. Physical health as far as I know is relatively equa

l and, as I sai d , [Mo ther] is im prove d in re gard to her men tal we ll-be ing alt hough I

–you know, I

have concerns as I’ ve previously stated. So I think that would weigh in favor of [Father]. I tem 6 would not be applicable; 7 would not be applicable, that’s preference ; Number 8, I don’t find any phy sical or emotional abuse to the children or under the current circumstances of parent to parent. Number 9, we don’t have a ny third par tie s who would frequent the home that I think would be ha rmful to these children, it would not be applicable. Number 10 I think is a factor that – “Each parent’s pa st and potential for future performance of pare nting responsibilities inc luding the willingness and ability of eac h of the par ents to f

acilitate and encou rage a close a

nd contin ui ng parent/child relationship between the child andthe other

parent consistent with the best interest of the child.” I thin

k that fa ctor wei ghs in – in

favor of [Fath er]. I

thin k [Father ’s] proposal in of fering joint decision making on items of-6- education, non-emergency health and religion a s o pposed to that of [Mother] is –

is a sign that fits within Number 10. And – and I tried to give him a chance to opt out of that by my

questioning of him but he didn’t. And I guess in his mind he – he feels like [Mother] and [Father] can deal with each other on these issues and try to reac h a joint decisi on. So he di dn’t back out on tha t so I – to me that i s a reaffirmation

of his verification on his proposal and indicates a – an intentto share

as best a s possi ble the – the par enting o f these children.
In reviewing both

parenting plans in detail for the reasons I ’ve stated and the findings I’ve ma

de on the factors of [Tenn. Code Ann. §] 36- 6-106 I designate [Fa

ther] as primary re sidential parent and I am going to execute the proposed parenting plan

present ed to the Court by [Fath er]. After evaluating theevidence before us, we do not find that the evidence preponderates ag ainst the trial court’s designation of Father as the primary r

esidential parent of the children. The trial court weighed the evidence against all of the pertine nt facto rs set for th in Tenn. Code Ann. § 36-6-106. We find no abuse of discretion in the trial court’s custody determination.
IV. Mother raises four procedural issues for our consideration. First, Mother arg ues that the trial court erred in stating from the bench that Mothe

r’s motion

for new trial, as later amended, was not timely filed as to the trial court’s orders of September 18, 2000 and July 31, 2001. We believe that Mother ha s misinter

preted t he trial c ourt’s re

marks. Followin g t he September, 2000, hearings in the instant case, the c ourt entered an order on September

18, 2000, in which it designated Father as the temporar y pri mar y res id ent ial par ent . In Ju ly, 2001, the court entered an order g ranting the part

ies a divo rce and decree ing that Father would continue to have temporar y custody of the childre

n. The trial court made its final decision naming Father as the pr imary resi dential p arent at the conclusion of another hearing in September, 2001, which decision was memorialized by an order dated December 20, 2001. F ollowing the entr

y of this order, Mother filed her motion for new trial, in w

hich she p rimarily challenged the court’s decision with respect

to custody. I

n doing so, she cites to testimony fr om the hearings in September, 2000, and July, 2001.
At the hearing on Mother’s motion, the trial court determined that Mother’ s motion , as i t related to the hea rings in September, 2000, and July, 2001, was not timely filed. On appeal, Mother argues that

she could not have f

iled her motion until

a final ord er was e ntered in the cas e, which

did notoccur un

til Dece mber, 200 1. There

fore, sh e reaso ns, her motio n as to all of the court’s prior orders was timely f

iled.-7-

As previously noted, we believe that Mother has misinterpreted the trial court’s use of the word “timely.” We ag

ree with Mother that her

motion was timely filed

under Tenn. R. Civ. P. 59.02, which requ ires that a mot ion for ne w trial be filed with

in 30 day s after t

he entry of judgm

ent. However, Mother’s motion with respect to the earlier court orders wa s not “timely” in the sense that it attacked court decrees per taining to who would serve as primary re sidential parent of the children pend ing he further order of the court. The c hallenged September, 2000, and July , 2001, orders related to tem porary cus tody. Onc e the co urt ma de its ulti mate d ecisi on awar ding p rimary r esidential parent statu s to Fa ther, Moth er’s ch allen ge of the prior orders, as they pertained to temporary

custody during past periods of time, was rendered moot. I n that sense, Mother’s motion was not “timely.” A tr ial cour

t cannot “unscra

mble” a “ scrambled egg .” I t is clear to us that th

e trial c ourt fully considered

Mother’s motion to the extent that it challenged the court’s ultimate decision to desig nate Father as the primary r

esidential parent. We find no error in the court’s judgment deny ing Mother’s motion for

new tria l. Next, Mother argues that the trial court err ed in failing to make a wri tten finding of the alleged emotional abuse inflicted upon her by Father. Tenn. Code Ann. § 36-6-106(a)(8) provides that a trial c ourt, in ma

king a c ustody determin ation, should consid er “[e]vid ence of physical or emotional abuse . . . to the other parent . . . . The court shall include in its decision a written finding of all evidence, and all findings of facts conne ctedth ereto.” In the instant ca se, Mother offered testimonythat Father had been emotionally abusive toward her. This testimony primarily related to alleged instances of Father y

elling at Mother and makingunreasonable demands upon Mother. The trial court did not make a written finding as to this alleged emotional abuse. However, in delivering its oral ruling from the bench at the conclusion of the Septe mber, 2001, hearing, the

trial court stated as follow s: Number

8, I don’t find any phy sical or emotional abuse to the children or under the current circumstances of pa rent to parent. While the cour

t did not inc orporat

e this finding into a written and filed memorandum, order, or judgment, it clearly

considered Mother’s testimony on emotional abuse and

determined that

there was no such abuse. The failure of the trial court to reduce its finding to the written form was contrary to the edict of the statute; however, the trial cou rt’s fai lure doe s not amoun t to reve rsible error. See Tenn. R. A

pp. P. 36(b ). The e

rror wa s harmles s. Mother next conte

nds that the trial court erred “when it characterized, as ‘kidnapping’, Mother’s behavior of taking the two minor children of the parties with her for a visit with a friend in Austin, Texas without informing Father of where she and the children were.”Mother a sserts tha t, under Tennes see cri minal law, h er acti ons do not co nsti tute k idnap ing.
In the S eptem ber, 2 001 he aring, the trial court made the following remarks conc erning Mother’ s sequest

ration of the child ren in Te xas:-8- I think wha

t remains of conce rn to the Co urt, and t his is over

this whole serie s of hearing s, is that in

listening to [Mother’ s] respons e under examination of – conc erning the situat ion wher e she lef t with the children and I know

she blame s that primarily on her attorney

at that time and says she wa s acting under his advise [sic] whenshe took the $50,000 and left the state. And – and basically [Mother], with the aid of her parents and relatives there, in esse nce seque s tered [the children] until [Fathe r] wa s finally able to ne gotiate

in to be ab le to see his children and

things. That – that still gives me a lot of concern because I wa sn’t satis fied with

[Mother’s ] answer

today in respon se to counsel’ s q u estions. I don’t know that if – although, as I said, [Mother’s] improved and coping with these

problems , if this gets to be overwh elmi ng becaus e of pressure having children a round or financial pressur

es or othe r pressu res that will come

about with both these folks as they move

on with the

ir lives th at –

whether – whether [Mother] would con

tinue to be

able to c ope. So that is a concern. Becau se that kind of activity to me even if you say ‘Counsel advised me’ is very

ir rationa l, is ver y pun it iv e to th e – t he [ Fat her ]. It amounts to a kidna

ping an d – y ou know, I

mean all k

in ds of thin gs come in your mind. I

t’s just a very

traumatic thing and I – I

think – and when you’r

e considering your

attorney’s a

dvise [sic] you have

to use your own judgment. And al thou gh I kno w y ou were under str ess at that time and I gues s in essence wer en’t think ing cle arly , if I

boil down you r t es ti mo ny. But I think this de

monstrate s at least

a propensi ty at one occasion and I

don’t know that

I don’t see a little of that now – may

be not to f

acilitat e a – as best a relationship with the other parent

– betwee n these children a

nd the othe

r paren t under a ll the circumstances of y ou all being separa ted and ha ving to share time. While Mother’s behavior in secreting the children from Father for three wee ks may not have amounted to the cr

iminal ac t of kidna

pin g under Tennessee law, it nonetheless was conduct that deprivedFather

of acce ss to his children. While the trial court’s use of the word “kidnaping”may have been tec

hnically incorrect, such d

oes not am

ount to reversible

error. When plac ed in cont ext, it is clear that the trial court was greatly concerned about Mother’s conduct in secre ting the children from Father and it was this concern that partially motivated the court’s award of custody to Father. Furthermore, Mother’s behavior, as alluded to by the court, eviden ced a lack of willingness to facilita te a close and continuing relationship between the children and Father. See Tenn. Code Ann. § 36-6-106(a)(10). Mother’s arg ument directed

at the co urt’s ch oice of w ords in

this case is merely an exercise in semantics, and, as previously stated, we find no reversible err or in the cou rt’s reference. See Tenn. R. App. P. 36(b). Finally, Mother a

rgues that the trial court erred in its decision to discredit the testimony of Mother’s expert wit

ness bec ause the

expert did

not interview both Mother and Father. We disagree.-9-

In the initial he aringsin this case, Mother offered the testimony of an expert witness, Judy Millington, Ph.D. Dr. Millingto n, a lice nsed psy chologist, performed

a psychological evaluation of Mother a few da ys b efore t

he first hearing; Dr. Millington never met with or evalua ted Father. At the conclusi on of these initial hearings, the trial court, in naming F ather the temporary primar y residen tial pare nt, stated as follow s: I give very little credit . . . to Dr. Millington’sopinion, in that she d id notinterview both par

ents and really g ot one side of the story, and it’s al wa ys my philosophy

at least that when we have these ty pe evaluations that the doctor should evalu ate bothparents, and in other cases, the children are too y oung here, probably

the children. This court has held that “[e]xpert testimony is not ordinarily conclus ive , but is pur

ely advisory in character, and the tr

ier of fa ct may place whatever

weight it chooses upon such testimony and may retra

ct it if it finds that it is inconsistent with the facts or otherwise unreasonable.” England v. Burns Stone Co. , 874 S.W.2d 32, 38 (Tenn. Ct. App. 1993) ( citi ng Gibson v. Ferguson , 562 S.W.2d 188, 189-90 (Tenn. 1976). “Even when no opposing expert testimony is offered, the trier of facts is still bound t

o decide the issue upon its own fair judgment assisted by expert testimony.” Roberts v. Robert

s , 827 S .W.2 d 788, 795 (T enn. C t. App . 1991 ) (cit ing Gibson , 562 S.W.2d at 190.) There is nothing in the re cord bef ore us to i ndicate

that the trial court was incorrect, as a matter of law, in discrediting the opinion of Dr. Millington. Clearly the cour t, in its discretion as the trier of fact, could choose to disregard the expert’s testimony . We thereforefind no error in the trial court’s decision with respect to the opinion of Dr. Millington.
V. The judgmen

t of the tr ial cour t is affir med. This case

is remanded for enforcement of the tria l court’s judgment and for collection of costs assessed be low, all pursuant

to applicable law. Costs on appeal are taxed to the appellant, Ferry l Theresita McClain.

_______________________________ CHARLES D. SUSANO, JR., JUDGE