### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE November

8, 2001 Se ssion NATALIE VARBANOFF (COKER) v. KENNETH ALAN VARBANOFF

A Direct Appeal from the Chancery Court for Rutherford County No. 97DR-1333 The Honorable Royce Taylor, Chancellor

No. M2001-00723-COA-R3-CV - Filed February 1, 2002

In a post -divo rce pro ceedin g, mother filed a petition requesting, among other things, that her you ngest child be allowed to go to a private school at her expense ra ther than a

public school. After a non-jur y tr ial, the tr ial cour t found tha

t it was in th

e best inte

rest of th e y ounges t child to r

emain in a public

school. Mo ther has appeale d. We aff irm.
Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which A LAN E. H IGHERS , J. and D AVID R. F ARMER , J., joined. Christopher Kim Thompson, Murfreesboro, For Appellant, Natalie Varbanof f (Coker) Daryl M. South, Murfreesboro, For Appellee, Kenneth Alan Va rbanoff OPINION The appellant, Natalie Coker Varbanoff (“ Mother”), and

appelle e, Kenne

th Alan Varbanoff (“Father”), were divorced on July 27, 1998, and have two (2) minor children. The final order parenting plan entered into by the parties provides that education decisions affecting their children will be jointly made. On December 14, 2000, Mother filed a “Petition to Enforce Par enting Plan and Marital Dissoluti on Agreement and to Find Defendant in Contempt.” Mother’s petition provides in pertine nt part: 8. The plaintiff at this time would like to place her daughter, Danielle , in a

private school known as Middle Tennessee Christian. The basis for

the plain tiff choo sing a pri vate

school over a pu

blic school is that among other things, Middle Tennessee Christian offers a better quality educational program with smaller classroom environments as well as other opportunities for growth.1 The trial court’s order dismissed the counter-petiti on and F ather h as p rese nted no i ssue concerni ng the

counter -pet it ion. -2-

In addition, the son, A dam, is cu rrently a ttending M iddleTennessee Christian. Plaintiff

has inquir

ed with defenda

nt whethe r he woul d agree to Danielle enrolling in Middle Ten ne ssee Christian. Defendant’s response has been that he wo uld not agr

ee for t he same reasons as he opposed N athan (sic) entering into Middle Tennessee Christian. 9. Your pla

intiff would show th at it

is impe rative that the school i ssue be resolved before the designated enr ollment period s o as t o serve the best interests of the child. On February 6, 2001, Father filed an answer and coun ter-pe tition admitting “tha

t Plaintiff . . . would like to pla ce the parties’ daughter in MTCS and . . . that the parties older son already attends MTCS.” Howeve

r, Father denied th at “his re asons for not wantin g his daugh

ter to att end MTCS are the exact same as for not wanting his son to go.” On February 7, 2001, Mother f

iled an a nswer to Father’s counter-petition 1 and on February 8, 2001, a non-jury trial was held. The trial court’s order filed on Fe

bruary 2 2, 2001, pr

ovides in p ertinen

t part: 1. That the p etitioner , Natalie Co ker’s req uest that the daughter Danielle be allowed to go to Mid dle Tenn essee Ch

ristian School is denied and that the d aughter shall go to

public sc hool, name

ly Siegel, as requested by the father, Kenneth Va rbanoff. On February 23, 2001, Father filed an “Objection to Order” disputing some of the language containedin the trial court’s February 22, 2001 order, which was prepared and submitted by Mother. On February 27, 2001, Mother filed a response to Father’s objection. After an evidentiary he aring on April 6, 2001, the trial court entered an order which wa s filed on

May 8, 200 1, and pr

ovides in pertine nt part: After

hearing all the proof presented by the parties and he aring argumen ts of coun sel for th

e partie s in this ca

use, the C ourt find s: 1. That it is in the best interest of Danielle to attend Siegel Midd l e School. This may chang e at the e nd of middle school and if the parties cannot agree then they may return to Court for a determination on High School. * * *-3- 9. That the Objection to Order filed by defenda nt and hea rd on Apr il 6, 2001 shall be treated as a motion to alter or amend pur suant to Rul e 59 of the Tennessee Rules of Civil Procedure. Mother has appealed

and raises the following one (1) issue for review as stated in he r brief: 1. Whether the trial court erred in finding that the best in

terest of the minor child wasnot to go to a private school as requested b y the petitioner, Natalie Varbanoff (Coker). Since this case was tried by the court sitting without a jury, we review the case de novo upon the record

with a pre sumption of

correctness of th

e finding s of fac t by the tri al court. Unles s the evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d). The proper r

ule is to determin e the best interest of the child when reviewing joint custody cases involving

the issue of whether a chi ld sh ould be placed in a public or private school. The welfareand best interest of the child are the paramount conce rns and the determinationof the child’s best interest must turn on the particular facts of each case

. See In re P arsons , 914 S.W.2d 889, 893 (Tenn. Ct. App. 1995)(citing Holloway v. Bradley , 230 S.W.2d 1 003 (Ten n. 1950)) ; see also Bah v. Bah , 668 S.W.2d 663, 665 (Tenn. Ct. App. 1983). We will now summarize the testimony of each witness. Mother testified at trial that

she wants Danielle to attend Middle Tennessee Christian School (hereinafter

“MTCS”) for the same reasons that her older son attends the school. She explained that MTCS is “a small private, good academic environm ent.” Sh e stated

that MTCS ha s high te st averages and that “ [t]he kids pr ogressinto college at a higher r ate, and the scholar ship prog ram is really good.” However, on cross-examination, Mothe r admitted that she could not compare the qualities of MTCS ag ainst those of the pub lic schoo l, Siege l, becau se Siege

l was still un der construction. Mother also stated that she would like Danielle to go to the same school as her older brother because having bothchildren in the same school wit

h the same

vacatio n schedu les would be more convenie

nt for the parents than having eac h child in a

differe nt school. Additiona

lly , Mother agreed to pay

the entire cost of Danielle’s private educa tion at MTCS. Father testifie d that M TCS is “be hind the times as far as [he is] concerned as to the academics that they

do offer, the facilities that they have to off er, and also the social development that’s very important to the childre n at this time in the ir life.” Fa ther explained that he has researched

information on other public schools in the area from the County Board of Education, and that Siegel will “have a computer for eve ry five c hildren in their classrooms, wh ich will proba bly putsix computers in each classroom[, and] [t]hey will be internet connected.” I n comparison, he stated that “[i]f you go to MTCS, there are 25 c omputers on tables strewn a round the wall, slow by today’s standards because it doesn’t take long for them to get out of date. None of them are Inter

net capable. None of the children are allowed to access the I

nternet at any

time.” Further more, Fa ther test ified in pe

rtinent pa rt:-4- [M]y son had to t

ake his own drum [to MTCS] to be in a pep band that consiste d of abou

t five kidsto pla

y jus t yesterday

because the school can’t affor d a drum. The drum that was there was another child’s, that had t

o go bac k finally to his home. The

ir band r oom is a little por table building that y ou fall

over chai rs in t ry ing t o squeeze into. The new Siegel middle school has a wonderful auditorium. I t looks like TPAC. If you can envi sion what I’ve seen of the plans that they’ve subm itte d to me – I talked to Mr. Ed Shirley down at the boardof educa

tion. He g ave me

a beautiful floor lay

out. Go ove

r to the Blackman High School. This will be comparable. It’s acoustically cor

rect. It’s profe ssionally lighted. They have sound and video booths. When you go to that stag e, you’re going to see a perf o rmance if it’s your child. You’re not going to be in a gymna sium that’s too small, and the seating is uncomfortable, and certainly not ac oustically correct. My daug hter loves to dance. Performances and e verything else like that will be offered

[at Siegel] in a very

profess ional and

comforta ble atmosphere. * * * MTC forbids dance. According to Father, Danielle has “quite a few” friends at the public sc hool she is curren tly attending and that many of he r friends will be goin g t o Siegel next year because of zoning. He commente d that the

“new Sie gel school will

offer new furnishings, new books, a media center, an auditorium where [D anielle] c an perf orm t hings that she loves to do, a gy mnasium where she can perform very

well, you know, those activities that she enjoys doing, too.” After the part ies test ified in this matter, the trial court made the following ruling from the bench wh ich we sta te in per tinent pa rt: Well, let me

say this: I have to decide these

cases based

upon what comes into court here. And I ha ven’t he ard a lot

th at’s oth er than t

he parti es’ opini ons. There’s no te st im on y f

ro m a nyb ody

at either school or

the count

y system or Middle Tennessee Christian School as to what Da nielle would be offered and what is available.-5- Ob vi ou sl y, Mr. Varbanoff h as some concerns about it. He’s been there and investigated it. From what I ’ve heard here today , I think it’s going to be in Danielle’s best interest to attend Siegel at the beginning of this school year. Ce rt ai nl y, that

may chang e at the e

nd of middl e school, if

they cannot agree on the hig

h school, i f Mid dle Tenness ee Christ ian offe rs a better program for her a

t that time or whatever. But from what I’ve heard he

re today, I have some concerns about her partici pation at Middle Tennesse e Christia n School. A

nd I r eally haven’t had much to go on. So I’m goi ng to de

termine s ince the

y c an’t ag

ree, tha t she would continue to go to public school. She’s been going to Mitchell-Nelson. She’ll continue in m i ddle scho ol at Sieg el for the next two y

ears. Then if they c an’t agree on high school, we may be bac

k here. The evidence does not preponderate ag ainst the trial court’s findings that it is in Danielle’s best interest to go to Siegel Middle School. Accordingly , the order of the trial court is affirmed, and the case is r

emanded for such further procee dings as

may be nece ssa

ry. Costs of the appeal are as se ss ed ag ai ns t t he ap pe ll an t, Na ta li e C ok er Va rb an of f, an d h er su re ty.

__________________________________________ W. FRANK CRAWFORD, PRES IDI NG JUDGE, W.S

.