Rule 10 of the Tennessee Court of Appeals provides: 

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This Court, with the concurrence of all judges participating in the case, may affirm, reverse

or modify the actions of the trial court by memorandum opinion when a formal opinion would have

no precedential value. When a case is decided by memorandum opinion it shall be designated

"MEMORANDUM OPINION", shall not be published, and shall not be cited or relied on for any

reason in any unrelated case.

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

June 9, 2005 Session

PENNY CAROL FLETCHER MORGAN v. BENJAMIN LOYAL MORGAN

Direct Appeal from the Circuit Court for Shelby County

No. CT-006931-00 Donna M. Fields, Judge

No. W2004-02452-COA-R3-CV - Filed July 20, 2005

This appeal arises from the trial court’s order designating Mother the primary residential parent of

the parties’ minor child and awarding Father less than equal parenting time. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; and

Remanded

DAVID R. FARMER,J., delivered the opinion of the court, in which ALAN E. HIGHERS,J. and HOLLY

M. KIRBY, J., joined.

Stuart M. Breakstone, Zachary M. Moore and Kathy D. Baker, Memphis, Tennessee, for the

appellant, Benjamin Loyal Morgan.

Jeffrey Jones, Bartlett, Tennessee, for the appellee, Penny Carol Fletcher Morgan.

MEMORANDUM OPINION1

This appeal arises from a divorce action. The parties, Penny Carol Fletcher Morgan (Ms.

Morgan) and Benjamin Loyal Morgan (Mr. Morgan) were married on January 26, 1997. One child

was born of the marriage in 1998. In November 2000, Ms. Morgan filed a complaint for divorce in

Shelby County Circuit Court. Between November 2000 and May 2003, however, the parties

separated and reconciled at least three times before permanently separating in the spring of 2003.
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In June 2003, Ms. Morgan filed a petition to establish custody and seeking designation as the

primary residential parent. Between the time the parties separated in 2003 and June 2004, when the

matter was heard in the trial court, the parties had equal parenting time with their minor child and

both participated in their child’s school events and activities. Following the June hearing, and after

considering the recommendations of two psychologists and the guardian ad litem, the trial court

prepared its own parenting plan. By order of August 26, 2004, the trial court granted the parties a

divorce upon stipulation of grounds and designated Ms. Morgan as primary residential parent. The

court awarded Mr. Morgan visitation every Wednesday from after school until 7:30 p.m. and from

Thursday after school until 7:30 p.m. on Sunday every other week during the school year. The trial

court further ordered that the parties would alternate residential custody weekly during the summer,

and that theywould share decision-making responsibilities, with Ms. Morgan having final decisionmaking authority subject to mediation in case of disagreement. Mr. Morgan filed a timely notice of

appeal raising the sole issue of whetherthe trial court erred in failing to properly compare the relative

fitness of the parties or act in the best interests of the child by awarding unequal parenting time. 

Standard of Review

We review the trial court's determination of child custody under an abuse of discretion

standard, affording the trial court great deference. Herrera v. Herrera, 944 S.W.2d 379, 385 (Tenn.

Ct. App.1996). This Court will not interfere with the trial court's determination absent a palpable

abuse of discretion or unless the judgment is against the great weight of the evidence. Id. at 386.

This deferential review is premised on the assumption that the trial court first considered the best

interests of the child in making the custody determination and did not act arbitrarily. Id. In making

a custody determination, the trial court must engage in a comparative fitness analysis of the parents.

Gaskill v. Gaskill, 936 S.W.2d 626, 630 (Tenn. Ct. App.1996). In so doing, it must consider the

factors outlined by the legislature as codified at Tenn. Code Ann. § 36-6-106. Id. Custody

determinations are thus based on a combination of subtle factors, and require a factually based

inquiry. Id. The trial court is in the best position to weigh the facts presented to it, and to assess the

credibility of the parties. Id. Similarly, the details of visitation arrangements are within the

discretion of the trial court. Hogue v. Hogue, 147 S.W.3d 245, 251 (Tenn. Ct. App. 2004).

Although the trial court’s discretion is not without limit and its determinations must be based on the

evidence and appropriate legal principles, we will not disturb the trial court’s determinations absent

an abuse of discretion. Id.

Discussion

On appeal, Mr. Morgan does not assert that the trial court erred in designating Ms. Morgan

as primary residential parent. Rather, he contends the trial court erred in awarding unequal

parenting/visitation time and asserts the shared parenting schedule followed during the pendency of

the divorce, whereby the minor child spent alternate weeks with each parent, is in the child’s best

interest. 
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Upon review of the record, we agree with the trial court that the parties both appear to love

their minor child. Further, although we do not find it necessary or relevant to review either party’s

rather serious patterns of negative behavior here, we agree with the trial court that both parties have

“issues” which they need to address. We cannot say, however, that the trial court abused its

discretion by awarding Mr. Morgan visitation every Wednesday evening, every other weekend from

Thursday after school until Sunday evening during the school year, and alternate holidays and weeks

during the summer. 

Contrary to Mr. Morgan’s assertion in this Court, we believe the trial court sought to act in

the child’s best interest by establishing a visitation schedule that would address some of the apparent

stress caused by the prior alternating residential arrangement and which would cause the least

amount of disruption as the child began first grade. The trial court considered the recommendations

of two psychologists and the guardian ad litem and, in light of those recommendations, found that

it is in the best interests of the child to have one primary home setting during the school year. The

two psychologists and the guardian ad litem agreed that the alternating residential schedule was a

cause of stress to the child and that one primary home would be in his best interests, particularly

during the school year. 

 Upon review of the record, we cannot say the evidence preponderates against the trial court’s

findings and find no abuse of discretion in the trial court’s award of visitation. Accordingly, we

affirm the judgment of the trial court. Further, we join the trial court in urging these parties to seek

assistance in dealing with their behavioral and communication issues and to conduct themselves in

a manner that is in the best interests of their child. Ms. Morgan’s request for attorney’s fees on

appeal is denied. Costs of this appeal are taxed to the Appellant, Benjamin Loyal Morgan, and his

surety, for which execution may issue if necessary.

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DAVID R. FARMER, JUDGE