### IN THE COURT OF APP EALS OF TENNESS EE AT JAC KSON A ugus t 24 , 200 5 S es sio n LORNA McG UIRE T OW NSEND v. J AMES ROSS TOW NSEND

An Appeal f

romthe Chancer y Court for Madison Coun ty No. 60600 Jam es Weatherford, Seni or Judge

No. W2004-02034-C OA-R3-C V - F iled Dece m ber 14, 2005

This is a divorce and child custody case . After thirteen y ear s of marriag e, the wif e filed a complaint for divorc e and soug ht cus t o d y o f t h e c o u p l e’ s t wo m i n o r c h i l d re n , al l egi n g i rr ec o n ci l ab l e d i ff er en ces and inappropriate marital conduct. The husband admitted irre concilable differ ence s, but arg ued that the wife had committed the inappr opriate ma rital conduc t. After a

leng thy trial, the trial cou rt desig nated the w ife a s primary residential parent, ordere d the hus band to pay child support, divided the mari ta l pr op e rty , o rd e re d th e hu sb a nd to pay the wi fe $7 0, 00 0, a wa rd e d the wi fe a tto rn e y ’s fe e s, a ndta xedthe c os ts o f the lit ig a tio n a g a ins t th e hu sb a nd . T he hu sb a ndapp e a ls. We a ff ir m. Tenn. R. App . P . 3 Appeal; Jud gm ent of the Chancery Court is af fi rm ed
H OL L Y M. K I RBY , J ., delivere d the opi nion of the Court, in which A L AN E. H I G H ERS , J ., and D A V ID R. F ARMER , J ., joined.
Terry J . L eonar d, Camden, Tenne ssee, f or Appe llant J ames Ross Townsend.
Mitchell D. M o s k o v i t z, Memphis, Tennessee, and J ason A. Cre ech, Me mphis, Tennessee , for Appellee L orna Tow nsend. OP IN ION
Pla int if f/Ap pe lle e L orna

To wn se nd(“ Wif

e ” ) andDe fe nd a nt/Ap pe lla nt Jame s Ro ss Townsend ( “Husba nd”) w ere marrie d in Tennesse e on J une 17, 1989. The parties ha d two minor c hil dr e n— Tay lo r Ann Town se nd(D .O .B . 1 0/0 6/9 6, a do pte d b y the pa rt ie s) a ndJame s Ro ss Townsend II

(D.O.B . 9/19/99).
Husband wa s in sales and trave led ex tensively

. Wife is a nurse. F or much of the marria g e, the parties lived in North Carolina. In the summer of 2000, the f amily moved to J ackson, Te nnessee , in order f or F ather to purcha se a business, Empire Marble. The parties’ daughte r, Tay lor, has bee n dia g no se d w ith At tent ionDe fi c it D iso rd e r w ith Hy pe ra c tiv ity

(A DH D) . T he ir

so n, Jame s Ro ss, suffe rs from a sthma and seve ral food a llerg ies.-2-

On Au g us t 20 , 2 00 2, Wif

e fi le d a c omp la int

fo r d ivo rc e in the She lby

Cou nty Cir c uit Cou rt

. As g rounds for the d i v o rc e, Wife alleg ed irre concilable differ ence s and inappropriate marital c on du c t. Wi fe so ug ht t o b e de sig nate d a s p ri mary re sid e nti a l pa

re nt fo r the tw o c hil dr e n. Sho rt ly a ft e r Wi fe fi le d h e r c omp la int , th e c a se wa s tr a ns fe rr e d to the Ma dis on Cou nty Chanc e ry

Cou rt

. Hu sb a nd ’s a ns we r t o Wif e ’s c omp la int a dmi tte d th e e xiste nc e of ir re c on c ila ble dif fe re nc e s, but denied that he had eng ag ed in ina ppropriate marital conduc t. As a def ense, H usband asse rted re c ri min a tio n, c la imi ng that, to the e xten t that Hu sb a nd wa s g uil ty of ina pp ro pria te mari ta l c on du c t, his actions wer e in re sponse to Wife’s inappropriate marital c onduct. Husband’ s counter- complaint alleg ed that both par ents wer e fit and pr oper pe rsons to have c ustody of the c hildren.
On J anuary

7, 2003, Wife filed a motion pendente lite to obtain child support from Husba nd pe nd ing the tr ia l. T he t ri al cou rt issue d a n o ra l ruli ng re qu ir ing Hu sb a ndto p a y mon thl y c hil d support in the amount of $1,034. For rea sons not clear

in the rec ord, a w ritten order memorializing that oral ruling was not filed.
Fo l l o wi n g the J anuary

hearing, H usband fa iled to make the $1,034 monthly child support pay me nts . C on se qu e ntl y , o n M arc h 3 , 2 00 3, Wif e fi le d a pe tit iona g a ins t H us ba ndfo r c on te mpt

. On Marc h 4, 200 3 , a wr i tten order was e ntere d, requiring Husband to pay child support in the amount of $1,034.00 per month. Appar ently , Husband did not comply with the court’s or der. Tw o months late r, Husband filed a motion to modify the child support orde r, alleg ing that it was based on inacc urate information re g arding the amount of his income.
I mmediately

after Hu s band filed his motion to modify , Wife filed another petition for contempt, ag ain alleg ing that Husband had f ai l ed t o p ay the re quired c hild support. On J une 16, 2003, the trial court gr anted Wife’s motion, finding that Husband was in a rre ars on his c hild support obligation and holding Husband in contempt. Husband wa s also order ed to pay $500 in attorney ’s fee s for the c ontempt petition.
Th e be nc h tri a l w a s h e ld o n s e ve ra l date s b e tw e e n O c tob e r 3 1, 20 03 , a ndJune 4, 20 04 . B oth parties t es t i fi ed at tria l. Wi fe te stified about the parties’ roles in the upbringing of their c hildren, ag es four and seve n at the time of the tria l. She said that, when they adopted Tay lor, Husband wa s working in a sales job in which he trave led virtually every wee k. She indicated that their daug hter Tay lor ’s inf

a nc y wa s d if fi c ult , th a t sh e c ri e d wi th c oli c muc h o f the tim e fo r f ou r m on ths . Sh e sa id that T a y lor ha s bee n dia g no se d w ithAt te nti on De fi c it D iso rd e r w ith Hy pe ra c tiv ity

(A DH D) a s w e ll as an auditory proce ssing disorde r. Wife said that their son Ross has seve ral medic al problems. He has asthma a nd food aller g ies to nuts, cheese an d eg g s. The aller g ies are sufficie ntly serious that exposure to some of the foods c ould be fatal, and kn o wl ed ge o f what to do in the event of a n inadvertent exposure is crucia l. I n add i t i o n , she said, Ross was very vulnera ble to infec tions and respiratory

illnesses, require d reg ular medic ation and vig ilance, and should not be ar ound smoke or animal dande r.-3-

Wife said that she had been primarily responsible for the c hildren. One exception, she said, was during an approximately six -we ek period when Ross wa s an infant, in which Husba nd was out of work. Du ri n g t hat time, she said, Husba nd kept the childre n and she w ent bac k to work. She described the situation while she wa s working and Husba nd was c aring for the c hildren: Q: What did he do with the children?
A: I ’m not sure what he did beca use whe n I

would come home, he would not have dinner fixed, the house would be horrible. He would still – he would be in his clothes but he hadn’t had his bath, his hair would be standing up every wher e, the c hildren would still be in their pajamas and I

was upset be cause I

was still tired from just having Ross and I said, ‘Y ou kn ow , th e le a st y ou c ou ld do w a s d re ss the c hil dr e n a ndc oo k d inn e r. ’ A nd , h e sa y s, ‘I can’ t do it all.’
Wif e te sti fi e d th a t, w he n H us ba ndwante d to pu rc ha se the Empir e Ma rb le bu sin e ss, sh e did not want to move from North C ar o l i n a t o J ackson, Te nnessee . She asserted that, when H usband pu rc ha se d th e bu sin e ss, he didno t a de qu a te ly re se arc h th e bu sin e ss, too k on he a vy de bts in o rd e r t o purcha se it, and put all of the c ouple’s asse ts into t he business. W ife said Husband had promised to p ut a sid e $45, 00 0 for ta xes, bu t f

a ile d to do so , a ndmortg a g e d th e ir ho me a ndus e d th e ir children’ s colleg e funds without her consent. As the busine s s fo u n d ered, he be g an withholding financ ial information from he r. F inally , she said, he le ft her and the childre n, took the money out of the ir ba nk a c c ou nts , a ndfaile d to pay c hil d s up po rt

. Wife testified that she works wee kday s as a nurse in a phy sician’s off ice, a nd also works one w e e k e n d a

mo n tha t a

h o s p it a l i n Ja c k s o n . Sh e c arr ie d me d ic a l i n s u r a n c e o n th e c h il d r e n a n d f or Hu sb a nd , to ok

the c hil dr e n to the do c tor , a ndbo ug ht t he c hil dr e n’ s c lothin g a ndne c e ssi tie s. Husband testified a s well. He a cknowledg ed that, for fifteen y ear s, he wa s in a sales job that require d him to trave l a

pproxi mately 120 day s a y ear . He sa id that he was f ired fr om that job after he re fused to tra vel internationally during the wee k that Ross was to be born. Af ter that, he said, he was une mploy ed for

sever al months, during w hich time he “stay ed at home, and

. . . raised both of the kids every d ay . ” He disag ree d somewhat with Wife’s desc ription of his care of the c hildren during that time, expl aining that “an infant stay s in their pajamas” and “ the re ason I didn’t cook, . . . every time I cooked any thing it wasn’ t good e noug h for he r [W ife] . . . , so I quit cooking.”
Husband a sserted that he did not believe that Tay lor had AD HD, or ne eded me dication for it, but acknow ledg ed that he ha d not spoken to the phy sician who diag nosed her . He c laimed that Wife had exag g erated some of Ross’s food a llerg ies, and de scribed va rious limit ations on Ros s’ s d ie t.
Hu sb a ndde sc ri be d Wif

e a s “ ind if fe re nt” a bo ut h is p ur c ha se of

the Empir e Ma

rb le bu sin e ss, and ac knowledg ed that the business had incurre d over $900,000 in de bts. He maintaine d that he had a “ g a me plan” fo r l if

e aft e r the imp e nd ing ba nk ru ptc y of the c omp a ny , c la imi ng that “ the mos t-4-

prominent people in this town” would “he lp me . . . find exactly what Iwant.” If he w ere desig nated the c hil dr e n’ s p ri mary

re side nt ial pare nt, he sa id, “ the n I ’m g oin g to f

inda job in t ow n th a t w ill a llo w m e to b e he re fo r the m. If I we re no t to g e t th e kid s, the n I ’l l g o b a c k in to w hat I kn ow be st and just travel in sale s.” He ant i ci p at ed that, if he we re de signated primary residential pa

rent, he would obtain a job paying “ betwee n $40,000.00 and $50,000.00 and not tra vel.”
Th e pa rt ie s p re se nte d c on sid e ra ble te sti mon y

fr om o the r w itn e sse s, inc lud ing famil y members, f

ri ends, employ ees, ne ighbor s, and a c linical social worke r. Their testimonyaddre ssed numerous issues ra ng ing f rom marital asse ts to moral fitness to parent the pa rties’ two c hildren.
On J uly 27, 2004, the t rial court issued a final decre e of divorc e. The court de signated Wife as the primary

residential pa

rent, a nd adopted Wife’s pr oposed permanent par enting plan. Husband’s c hild support obligation re mained at $1,034.00 pe r month, and he was held in conte mpt of c o u r t f o r h i s c h i l d s u p p o r t arr e ar a g e . T h e tr i a l c o u r t a l s o o r d e r e d t h a t H u s b a n d “ sh a ll p a yto [W ife] $70,000.00 which shall be non-disc harg eable in bankruptcy ” and further order ed Husba nd to pay Wife’s attorney

“$12,000 as a limonyin solido, non -d i s ch arg eable in bankruptcy . . . .” Finally , the trial court divided the marital property and tax ed the costs of t he li tigation to Husband. On Aug ust 11, 2004, Husband appe aled.
On appea l to this Court, Husband raises five issues of a lleg ed er ror by the trial court: (1) the desig nation of Wife as primary residential pare nt; ( 2) setting Husband’s child support obligation at $ 1 , 0 3 4.00 per month; (3) the $70,000 awa rd to Wife, non-dischar g eable in bankruptcy ; (4) the awa rd to Wife of $12,000 in attorney ’s fe es; and, (5) the taxing of c osts to Husband.
I n this non-jury

civil action, the trial c ourt’s conc lusions of law are subject t o a de novo revie w and are not entitled to a pre sumption of corre ctness. Kendrick v. Shoem ake , 90 S.W .3d 566, 56 9 (T e nn . 2 00 2) . H ow e ve r, we re vie w the tr ia l c ou rt ’s fa c tua l f ind ing s de novo upon the re cord, acc ompanied by

a pre sumption of corre ctness, unless the pr eponderan ce of the evidenc e re quires oth e rw ise . Tenn. R. App. P. 13(d). In this case, the trial court did not make f indings of f

act. When a trial c ourt fails to make specific findings of fac t, it become s incumbent upon this Court to review the re cord and make a determination as t o wher e the pr eponder ance of the e vidence lies. Kendrick , 90 S.W. 3da t 57 0; Ga nze v oo rt v . Rus se ll , 9 4 9 S

. W

. 2 d 2 9 3 , 2 9 6 (T e n n . 1 9 9 7 ) ( ci t i n g Kem p v. Thurm ond, 52 1 S. W.2 d 8 06 , 8 08 (T e nn . 1 97 5) ). I mpl ic it, ho we ve r, in the tr ia l c ou rt ’s de c isi on is its assessment of the cr edibility of t he witnesses. By virtue of the opportunityto observe the manner and deme anor of the wit nesses while testify ing, the trier of fac t is in the best posi tion to judge the truth fu lne ss of the wi tne sse s. Con se qu e ntl y , thi s Cou rt g ive s g re a t we ight t o t he cr e dib ili ty determinations of the trier of fac t. M i d
- C e n t u r y I n s . C o . v . W i l l i a ms , 174 S.W .3d 230, 236 (Tenn. Ct. App. 2005).
As Husband’s first assig nment of error, he challeng es t he trial court’s desig nation of Wife as the primary

residential pa

rent. Our revi ew of

this iss ue is tempere d by the under standing that

“ [t]ri a l c ou rt s a

re ve ste d w ithwi de dis c re tio n inma tte rs of c hil d c us tod y a nd the app e llate c ou rt s w ill not interfer e except upon a show ing of err oneous exercise of that discre tion.” Koch v. Koch , 874-5-

S

. W

. 2 d 5 7 1 , 5 7 5 (T en n . C t

. Ap p . 1 9 9 3 ) ( ci t i n g M imms v . M

imms , 780 S.W .2d 739 (Tenn. Ct. App. 1989)). The discretion acc orded to the t rial court is due, in larg e part, to the fac t that custody and visitation decisions hinge on a number of subtle f

actor s, including c redibility determinations and the demea nor of witnesse s. Nelson v. Ne lson , 66 S.W.3 d 896 , 901 (T e nn . Ct. App . 2 00 1) ; Gaskill v. Ga sk ill , 9 36 S.W. 2d62 6, 63 1 (T e nn . Ct. App . 199 6)

. Ac c or din g ly , the app e llate c ou rt s a re g e ne ra lly reluc tant to second-g uess the trial c ourt’s decisions. See, e .g., Johns on v. Johns on , 165 S.W .3d 640, 645 (Tenn. Ct. App. 2004).
The trial c ourt’s re sponsibili ty is to make a de signation of primary residential pa

rent ba sed on the trial court’s determination of the child’s best intere sts. Johns on , 1 65 S.W. 3da t 64 5; Ga sk ill , 936 S.W .2d at 630. This is ma ndated by statute. See T.C.A. § 36-6-106( a) ( 2005) (r equiring that when a court determines custody in a divorce proce eding “such de termination shall be made upon the basis of the be st interest of the c hild”).
Th e be st i nte re st ana ly sis is l arg e ly a de te rm inatio n o f w hic h p are nt p ro vide s th e mos t suitable environment f

or the c h i l d t o flourish. See, Nelson , 66 S.W .3d at 901. The inquiry nece ssitates a fa ct-intensive e x amination of many considera

tions. Ga sk ill , 936 S

. W

. 2 d at 630. Tenne ssee statutes include a list of rele vant fa ctors to be c onsidered. See T.C.A. § 36-6-106( a); see also, Johns on , 165 S.W .3d at 645–46.
I n the instant case , Husband c halleng es the trial c ourt’s desig nation of Wife as the primary residential pa

rent, a rg uing that the evidenc e pre ponderates ag ainst the trial court’s ruling

. We disag ree . Fr om the evidenc e, it is essentially undisputed that Wi fe ha s alway s been the children’ s primary

car eg iver, with the possible exception of a short period of time in which Husband wa s unemploy ed. B oth children ha ve sig nificant proble ms that make ra ising them e sp e c ia lly c ha lle ng ing . B y

virtue of he r t raini ng a s a

nu rs e , a s w e ll a s h e r d e mon str a te d a bil ity to provide struc ture, time and c onsistency to their upbring ing, the trial court a ppare ntly found Wife to be better

able to mee t those challeng es. Husband and his witnesses made a varie ty of acc usations ag ainst Wi fe intende d to refle ct on her fitness as a pa

rent; implicit in t he trial c ourt’s ruling was a

finding that their testimony was not cr edible. As noted a bove, we acc ord g reat defe renc e to the trial c ourt’s dete rminations of cre dibilit y . Johns on , 165 S.W .3d at 645. With appropriate def

ere nce to the trial court’s implicit findings on the cre dibilit y of the witnesse s, we conclude that the evidenc e pre ponderates in favor of the trial c ourt’s desig nation of Wife as primary residential pa

rent. As Hu sb a nd ’s se c on d a ssi g nme nt o f e rr or , h e arg ue s th a t th e tr ia l c ou rt e rr e d inse tti ng his child support obligation at $1,034 per month. Husband’ s brief a rg ues that the c hild support obligation was set in err or, but provides ne ither any ref ere nces to the r ecor d to substantiate any of the fa cts addre ssed in the ar g ument nor any citation to authority

to justi fy reve rsal of the trial court’s r uling. Such c itations to t he re cord a re c lear ly require d. See Tenn. R. App. P. 27(a) (7); Te nn . R. Ap p. Ct. 6( b) . Wh e n a n a pp e lla nt a rg ue s f a c tua l c ir c ums ta nc e s w ith ou t app ro pria te ref ere nces to the r ecor d, this Court m ay ref use to addre ss the arg ument . See Sc hoe n v . J . C. Bradford & Co. , 642 S.W .2d 420, 427 (Tenn. Ct. App. 1982) ( decla ring , “This Court is notW e no t e t hat t he t ri al co urt d esi gnat ed t he $ 7 0 , 0 0 0 as “ no n- d i schargeable i n ba nkruptcy

. ” In f act , i t i s d o ub t f ul 1 tha t t h e trial c o u rt h a d th e a u tho rity to m a k e su c h a d e te rm ina tio n . S e e , e.g ., In th e M a tter o f D e n n n is , 25F. 3d 274, 277 ( 5 Ci r . 199 4) ( decl ar i ng , “ [ T ] he det er mi nat i on of wh et her a debt i s nondi s cha r gea bl e under [11 U

. S. C

. § 52 3] i s a mat t er th
o f f ed eral ba nkruptcy l aw, no t s t at e l aw.”)

. -6- under a duty to minutelysear ch a voluminous rec ord to verif y numerous unsupported a lleg ations in brief.” ). Ne verthe less, from our r eview of the re cord, H usband provided c onflicting testimony a nddo c ume ntatio n r e g ard ing the pr os pe c ts f or su c c e ss f or his bu sin e ss andthe mon thl y inc ome he wa s rec eiving . We find there w as suffic ient evidenc e to support the trial c ourt’s aw ard of child support, and the tria l court is aff irmed on this issue. Husband, of c ourse, may petition the trial court f

or modification if he shows that his income is now substantially diminis hed.
Husband ne x t arg ues that the trial c ourt err ed in awa rding Wife $70,000 and dec laring the same non-disc harg eable in bankruptcy . Husband c ontends that this was an e rrone ous division of m ar i t a l p r o p e r t y. The rule s of this Court set out specific re quirements for the contents of a

brief in a domestic relations case in which a party challeng es a tria l court’s disposition of marital property

. Specifica lly , this Court’s rules provide:
I n domestic relations appeals whe re the issues involve the amount or the dispositi on of the mar

ital property , the appe llant’s brief sha ll contain in the state me nt o f f

a c ts o r i n an a

pp e nd ix, a n o rd e rl y

ta bu la tio n o f a ll m ari ta l pr op e rt y in a fo rm su bs ta nti a lly

lik e the fo rm

a tta c he d h e re to. Al l e ntrie s in the ta ble a s to value a nd to whom the property was a war ded shall be a ccompa nied by a citation to the rec ord whe re the information may be found. Tenn. R. App. Ct. 7(a) . As stated in subsection (a ), the Rule eve n provides an e x emplar f or the pr op e r d e sig natio n a ndta bu la tio n o f m ari ta l a sse ts. I n th e pr e se nt c a se , H us ba ndfaile d to provide e ven an e x planation of the ma rital assets at issue, much le ss an orde rly tabulation of the marital prope rty . Consequently , we c onclude that this arg ument is waived. See, Bean v. Bean , 1 40 S.W. 3d52 , 5 4– 55 (T e nn . Ct . A pp . 2 00 0) (d isc us sin g the pr e de c e sso r t o Ru le 7, Rule 15); Spur geon v. Spurgeon , 2 00 5 WL 13 90 06 7, *2 (T e nn . Ct . A pp . Jun e 13 , 2 00 5) ; Howell v. How e ll , 2002 WL

1905307, *3 (Tenn. Ct. App. Aug . 15, 2002) (noting that “whe re an appellant fails to comply

with this rule, that appellant wa ives all such issues re lating to the r ule’s re qu ir e me nts .” ); Dur

ant v . D ura nt , 2002 WL

772923, *3 (Tenn. Ct. App. Apr . 30, 2002) (r uling that this Court i s “under

no duty to searc h a voluminous recor d in order to disce rn the va luation of [a] couple’s property .”).
F ina lly , H us ba ndc on te nd s th a t th e tr ia l c ou rt e rr e d b y a wa rd ing Wif e $1 2, 00 0 in attorney ’s fe es as a limonyin solido and in tax ing the costs of the litigation ag ainst him. Any awa rd of attorney ’s fe es in a divorc e ac tion is wit hin the sound discretion of the trial court a nd will not be disturbed on appea l unless the appellant c an cle arly demonstrate an abuse of

that-7-

discretion. Aaron v. Aaron , 909 S.W .2d 408, 411 (Tenn. 1995) ; Smith v . Smith, 912 S.W .2d 155, 161 (Tenn. Ct. App. 1995). In this case, our revie w of the r ecor d indicates that the tria l c ou rt ’s a wa

rdof a po rt ionof

Wif e ’s a tto rn e y ’s fe e s, a s w e ll a s c os ts, wa s a n a pp ro pria te e xer c ise of its discretion.
Th e de c isi on of

the tr ia l c ou rt

is a ff ir me d. Cos ts o n a

pp e a l are ta xedto Ap pe lla nt/De fe nd a nt Ja me s T ow ns e nda ndhis su re ty , f or wh ic h e xec uti on ma y

iss ue , if n e c e s s ar y.

___________________________________ HOLL Y M. KI RBY, JUDGE