### IN THE COURT OF APPEALS OF TENNESSEE AT KNOX VILLE A ssi gne d on Br ie fs , N ove m be r 13, 200 7

PA IGE TOWN SON LY LES v. JOSHU A P AU L LY LES

Direc t Appeal from the Chancer y Court for Loud on Coun ty No. 10874 Hon. Fr ank V. Wil liam s, III., Chan cellor

No. E2007-01179-COA- R3-CV- F ILED JANUARY 18, 2008

The Tr ial J udg e aw arde d primary re s i d en t i al custody of the pa rties’ c hild, d.o.b. 2/14/05, t o the fathe r. Th e mot

he r a pp e a le d th e a wa

rd of c us tod y . We a ff ir m th e Tr ia l Co ur

t’ s Judg me nt.

Te nn. R . A pp. P .3 App e al a s o f Rig ht ; J udgm e nt of t he Cha nc e r y C our t A ffirm e d.

H ER SCH EL P I CKE N S F RAN KS , P.J ., delivere d the opinion of the cour t, in which C H A RLES D. S US ANO , J R ., J ., and D. M I CH A EL S WI NEY , J ., joined.

Da vid C. L e e , K

no xvill e , T e nn e sse e , f

or a pp e lla nt.

Gar y Fox, L enoir City , Tenne ssee, f or appe llee.

OP IN ION

I n this divorce ac tion wh i ch was initiated by the father, the de terminative issue on appea l is whether the T rial Court err ed in awarding primary residential custody to the fathe r, of the only child of the mar

riag e, D.P.L ., d.o.b. 2/14/05.
Following the evidentiar

y hear ing, the Tri a l C o u

r t s ta te d th a t t h e c u s to dy

decision wa s difficult bec ause it involved a small c hild, a nd he did think mothers often ha d an adva ntag e over

the fathe rs in their ability

to be tter communicate with a small c hild, a nd this was not unusual. The Court found, howe ver, that the evidenc e pre ponderated in t h e fa t h er’s favor , beca use the mother ha d a “skew ed view” of the potential impac t on he r son of how she was living , and stated that “y ou can’ t keep up this lifestyle without at least at some point havinga g reat pote ntial f or adve rsely

influencing-2-

y our child.” The Court continued, that the m other could not eng ag e in such activiti es without g iving the c hil d th e ide a

that it wa s ok a y to do so , a nd that e ve n tho ug h th e c hil d w a s o nly tw o, he wo uld some day become awa

re of what wa s g oing on, an d t h at “what their pare nts passively approve by their lifestyles, oftentimes it’s g oing to influe nce a nd be adopte d by

their childre n.”

Th e C o u rts t a t e d

t h a ti tw a s l e s s l i k e l y

t h e c h i l d w o u l d b e e xp o s e d

t o p o t e n t i a l ly destructive be haviors with the father, ba sed o n t h e we i g ht of the evide nce, but c oncluded that the mother should have “ liberal c ontact” w ith the child, but the father would be desig nated a s residential custodian. The Court dire cted t h e p ar t i es to try to come up with a “ working arr ang ement”, ba sed upon their sche dules, log istics of transporting the child, etc.

The fathe r filed a

Proposed Pare nting Plan, which na med him as primary

residential pare nt, and g ave him 281 day s with the child, and the mother 84 day s. The mother filed a Proposed Parenting Plan a fe w day s later, whic h names the f ather as primar y residential pare nt, a

nd g ives the mother 182 day s with the child, an d g ives the father 183 da y s. The Court enter ed the f ather ’s pare nting plan, w hich 84 d ay s with the mother consisted of e very other we ekend, a

nd ever y other Wed ne sd a y e ve nin g

. Th e Court a lso re c ite d that the pr op e rt y iss ue s ha d be e n r e so lve d b y a g re e me nt, and the Or der g rante d the par ties a divorce in the Dec ree . The Court al s o i s s u ed an injunction prohibiting both par ents from having t h e ch i l d in the company of anyone who wa s under the inf lue nc e of mari jua na , a lc oh ol, or

a ny oth e r t y pe of int oxic a nt, a nd

fr om b e ingin a

ve hic le wi th any one not prope rly licensed. The Court also order ed the mother t o pay child support to the father,

a nd dir e c te d th a t e a c h p a rt

y pa y the ir ow n atto rn e y ’s fe e s.

On a pp e a l, t he mot he r r a ise s th e se iss ue s:

1. Whether the Tr ial Court abused its d i s cretion when it awa rded pr imary

re sid e nti a l pa

r e n t s t a t u s t o th e fathe r w ith ou t c on sid e ri ngthe statut or y fa c tor s, and without considering that the s iblings had a st rong bond and shoul d not be separ ated?

2. Whether the submission by the father’s attorney of a propose d pare nting plan that indicated that it had be en appr oved by the mother’s a t t o rney

was fra udulent, and nec essitates the setting aside of that order?

3. Whether the Tr ial Court abused its discr etion and violated the mother’s due p r o c e s s r i g h t s wh e n

i t e n t e r e d a p e r m a n e n tp a r e n t i n g o r d e r

w i t h o u tt e s t i m o n y,
no tic e , n or

op po rt un ity to b e he a rd f

our d a y s a ft e r b e ingpr e se nte d w ith same?

4. Whether the Tr ial Court abused its discretion in enter ing a n order allowing the mother visitation e very other we ekend, w hen the Court said in its opinion that the mother should have “libera l visit ation”?The mother ha s an 11 y ear old child by

a prior ma

rriag e who is re siding with her

. 1

-3- 5. Whether the Trial Court abused its discretion and violated the mother’s due proce ss r i gh t s when it enter ed the f ather ’s proposed pe rmane nt pare nting plan, w h ic h la c k e d

a c e rti f ic a te o f s e r v ic e , f o u r d a y s a f te r b e in g p r e s e n te d with same?

6. Whe the r t

his Court sh ou ld a wa rd e ith e r p a rt

y a tto rn e y ’s fe e s o n a

pp e a l?

The mother argues the Trial Court a bused its discr etion when it a war d ed p ri m ary residential status to the fathe r without consideringthe statutory fac tors, and without consideringthat the sib lin g s h a d a

str on g bo nd

a nd sh ou ld n ot b e se pa

ra te d. Te nn

. Cod e Ann. §3 6- 6- 10 6 se ts f or th 1 the fa ctors which the court is to consider in makinga custody deter mination, which are :
(1) The love, af

fec tion and emotional ties exi sting be tween the pare nts and child;
(2) The dispositi on of the pa rents to provide the child with food, clothing , medical

car e, educ ation and other nece ssary car e and the deg ree to w hich a pa rent ha s been the primary

car eg iver;
(3) The importance of continuity in the child' s life and the leng th of time the child has liv e d in a sta ble , s a tis fa c tor

y e nv ir on me nt;
(4 ) T he sta

bil ity of the fa mil y un it o f t he pa re nts ;
(5 ) T he me nta l a

nd ph y sic a l he a lth

of the pa re nts ;
(6) The home, school and c ommunity rec ord of the c hild;
(7)( A) The rea sonable pre fer ence of the c hild if twelve (12) y ear s of ag e or olde r;
(B ) The court may

h e a rth e p r e f

e r e n c e o f a y o u n g e r c h il d u p o n r e q u est. The pref ere nces of

older c hildren should normally be g iven g reater we ight than those of y oung er c hildren;
(8) Evide nce of

phy sical or emotional abuse to the child, to the other pare nt or to any oth e r p e rs on ;
(9) The char acte r and be havior of a ny other pe rson wh o re s ides in or fre quents the home of a pare nt and such pe rson' s interac tions with t he child; and
(10) Eac h pare nt's past and potential for future perf orman ce o f p are nting

re sp on sib ili tie s, inc lud ingthe wi lli ng ne ss a nd a bil ity of each of

the pa re nts to-4- fac ilitate and enc ourag e a close and c ontinuing par ent-c hild relationship betwee n the child and the other

pare nt, consistent with the best interest of the c hild.

The mother a

rg ues the Court fa iled to consider these fac tors, beca use it did not specific ally

enumer ate a

nd mention them.

I t is true the Trial Court d i d n o t s p ecif ically discuss these fa ctors, but there is no indication that the Court did not consider them. The Court discussed the l o v e, af fe ct i on and emotion al t i es b et wee n the par ents and this child, and discussed that the mother wa s a better communicator w ith the child and h ad an advantag e in that re g ard. The Court stated the proof , howeve r, pre ponderated in favor of the fa ther a s cust odian for “ all of the re asons that have been articulated on beha lf of the f ather .” Specif

ically , the mother was not consideringthe potential impact of her chosen life sty le on the child, a n d that it would adverse ly influence him at some point. The Court fu rt he r f ound the re wa s le ss l ike lih oo d th a t th e c hil d w ou ld b e ex po sed to p ote nti a lly destructive be havior by

the father.
As this Court has previously rec og nized:

Divorce aff

ects c hildr en profoundly by undermining their sense of stability and well-be ing. T hus, custody and visitation arra

ng ements ar e amongthe most important decisi o n s co n fr onting a

trial court in a divor ce c ase. The needs of the childre n are para mount; while the desires of the pare nts a re seconda

ry

. Custody should ne ver be

us e d to punis h o r r e wa

rd the pa re nts , b ut r a the r s ho uld

pr omo te c hil dren ' s b e st interests by

placing them in an environme nt t hat will best serve their phy sical and emotional needs.

No har d and fa st rules exist for de termining which custod y and visitation

arr ang ement will best serve a child' s needs. The inquiry i s fac tually

driven a nd

re qu ir e s th e c ourt s to c a re fu lly we ig h nume ro us c on sid e ra tio ns . A mon g the se considerations are:
the ag e, habits, mental a

nd emotional make- up of the child and those parties

c omp e tin g fo r c us tod

y ; th e e du c a tio n a

nd e xpe ri e nc e of

tho se se e king t o
ra ise the c hil d; t

he ir c ha ra c te r a nd pr op e ns iti e s a s e vid e nc e d b y the ir pa st conduct; the financial and phy sical circumstance s available in the home of

eac h party

seekingcustody

and the special re quirements of the child; the availability

and extent of third-par

ty support; the associations and influe nces to which the chil d i s m o st likely to be exposed in the alternatives aff orded, both positi ve and ne g ative; a n d wh er e is the g reater likelihood of an

e n v i r o n m e n tf

o r t h e c h i l d o f l o v e , w a r

m t h , s t a b i l i t y, s u p p o rt , c o n s i s t e n c y,
car e and c oncer

n, and phy sical and spiritual nurtur e.

Court s c us tom a ri ly de vis e ini tia l c us tod y a nd vis itatio n a

rr a ng e me nts by

e ng a g ingin-5- a " compar ative fitness" a n aly sis which require s them to determine whic h of the

a va ila ble c us tod ians is c omp a ra tiv e ly mor e fi t th a n th e oth e r. I n und e rt a kin g thi s analy sis, the courts must understand that pare nts, whether ma rried or not, are human being s, eac h with his or her own virtue s and vice s. There fore , the courts should not

measure either pa

rent a g ainst the standar d of per fec tion.
Since stability

is important to any

child' s well-being , the cour ts have e mphasized the i mp o rt a n c e o f c o n t i n u i t y o f p l a c e m e n ti n c u s t o dy a n d v i s i t a t i o n c a s e s

. C o n t i n u i t y, howeve r, does not trump all other considerations. Depending on the fa cts, a pa rent who has be en a c hild's primary car eg iver may not ne cessa rily be compar atively

more fit than the other pa

rent to have perma

nent custody

of the c hild.

Custo d y an d visitation determinations often hing e on subtle fa ctors, including the pa re nts ' demea

no r a nd c re dib ili ty

duri ngthe div or c e pr oc e e din g s th e mse lve s. Ac c or din g ly , a

pp e llate c ourt s ar e re luc tant to se c on d- g ue ss a tr ia l c ourt ' s d e c isi on s. Tr ia l c ourt s must be a

ble to exe rc ise br oa d disc re tio n in the se ma tte rs , b ut t he y sti ll must base t h eir de cisions on the proof a nd upon the appr opriate a pplication of the

a pp lic a ble pr inc ipl e s of la w. Thus , we re vie w the se de c isi on s de novo on the re cord with a pre sumption t hat the trial c ourt' s findings o f fa ct are corr ect unless the evidenc e pre ponderates otherwise

.
Ga sk ill v . G as k ill , 936 S.W .2d 626, 631 (Tenn. Ct. App. 1996)( citations omitt ed).

We have made clea

r that “w e dec line to disturb custody decisions unless they

are based on a

materia l error

of law or the evidenc e pre ponderates ag ainst them.” Adelsperge r v. Adelsperge r , 970 S.W .2d 482, 485 (Tenn. Ct. App. 1997).

I n this c a s e , t h e e v i d e n c e p r e p o n d e r a t e s i n f a v o r o f C o u rt ’ s d e c i s i o n , b e c a

u s e b o th pare nts were shown to have a close relationship with the child, and we re shown to be able to provide for the c hild’s needs, but there wer e conce rns about the mother’s “par ty ing” lifesty le that tipped the

sc a le in t he fathe r’ s f

a vo r. Th e re wa s no evi de nc e of a bu se , or that one pa

re nt t ri e d to ke e p th e c hil d from the other , and both par ents had a past rec ord of pe rfor

ming well as pare nts in ge nera l. Yet, the mot he r h a d a his tor y of sta y ingou t l ate , part y ing , d ri nk inga nd

smo kin g mari

jua na , w hic h c ou ld

cre ate pr oblems for this child if she was the primary residential pa

rent. Many

of the other

statutory fac tors are somewhat irr elev ant when dealing with a child of such young ag e, bec ause the re is no

sc ho ol r e c or d, the re is n o w a y to d e te rm ine a

re a l pr e fe re nc e , a

nd the c on tin

uit y is no t a s g re a t a fac tor due to the s hort leng th of time being considere d. The sig nificant fa ctors, beside s those listed above, w ould be the stability of the fa mily unit of the pare nts, and the mental a nd phy sical hea lth of the par ents, and in t h i s case , those fac tors would weig h near ly equal. The mother’s ba d choice s reg ardingher friends and lifesty le wer e the most important fac tors that influence d the Court in the de te rm inatio n o f w hat is in t his sma ll c hil d’ s b e st i nte re st, a nd we re the ma tte rs the Cou rt pr op e rl y fo c us e d u po n. Th e mot

he r h a s n ot s ho wn

e rr or in t he Court ’s c omp a rativ e fi tne ss a na ly sis

.-6- The mother f

urther a rg ues t he Trial Court did not consider the sepa ration of the ha lfsiblings, and that siblings should not be separ ated by a custody decision absent “proof of potential h ar m to one of them or other extenuating c ircumstance s.” Grace y v. G racey , 1996 WL 198230 (Tenn. Ct. App. Apr

. 25, 1996). I n this case , howeve r, t here was proof of potential har m to the child, based on the mother’s ongoing use of alcohol and drug s, her a dmitted inst ance s of driving under the influence , and her

habit of havingher ma

rijuana a nd para pherna lia in the house w h ere the y oung child could be e x posed to it. This iss ue is also without merit.

Ne xt, th e mot

he r a rgue s the Tr ia l Court imp ro pe rl y “ sh or te ne d” the pr oo f in o rd e r t o sp e e d th e c a se a lon g , a

nd ke pt her fr om c a lli nghe r f a the r o r T re y

a s w itn e sse s. Th e tr a ns c ri pt,

re v ea l s that the Court asked the attorney s what additional proof they intended to pre sent afte r the parties testified, a

nd the attorney s responde d they eac h had 3-4 witnesses who would ba sically testify reg arding eac h party ’s parenting abilities. The Court then told them that they would eac h have te n minutes of direc t examination t ime for those w itnesses, to use as they saw fit. The C o u rt d id not

ex cl u d e any

witnesses, but mere ly

limit ed the dire ct examination tim e for those witnesses. The mother then c alled four

wi tnesses, and ne ver a sked for more witnesse s/tim e, nor obje cted to the Court’s time limi ts. The Court has discre tion in controlling i ts trials/dockets, and there has bee n no showing of abuse of discre tion. The mother did not raise any issue with the Trial Court’s ruling at tr ia l. T his iss ue is a lso wi tho ut m e ri t.

The mother argues the Trial Court e rre d in e ntering the par enting plan proposed by the father, without g iving her additi onal not ice, tim e, or opportunity to be heard on the s ame. She also argues the fathe r’s attorney “fr audulently ” repr esente d that the mother’s attorney had appr oved the father pa

renting plan.

Th e pa re nti ng pla

n w hic h th e fathe r f

ile d w iththe Court

c le a rl y sh ow s th a t it

is a “propose d” plan a

nd it was made even mor e cle ar by the fa ct that the mother f

iled her ow n proposed plan four da

y s later. While the plan filed by the father contains a paragraph that rea ds “Approve d for Entry :” and then lists both attorney s and their addre sses, this a ppear s to be nothing more than the standard format for providing a plac e for the attorne y s to show their approva l. I t was not signe d by the mo th e r ’ s a tt o r

n e y , a n d th e r e is n o qu e s ti o n th a t h e h a d n o t a p p r o v e d th e s a me

. There is no showing that the father’s attorney acte d fra udulently , he simply

filed a proposed pa

renting plan for the Court’s consider ation, and the Co u rt u l t i m ately adopted that plan, r ather than adopting the proposed plan f

iled by the mother.

The mother c o n t i n u es t hat the Court violated her due proc ess rig hts by

signingthe fathe r’s plan without g iving her notice or opportunity to be hear d. Both plans wer e filed shortly afte r the cu s to dy

h e a r in g , a n d

th e Co u rt h a d

a lr e a dy d e te r mi n e d th e c u s to dy

is s u e

. T h e p a r e n ti n g plan simply put into place what the Court had alre ady direc ted, with a spec ific visitation schedule for the mother. As noted, the Court ha d, at the conclusion of the hear ing, encour ag ed the par ties to work

ou t a re a so na ble vis ita tio n s c he du le on

the ir ow n, bu t th e pa

rt ie s w e re un a

ble to co mpl y

wi th t his direc tive, and thus ea ch p ar t y s ubmitted his/ her ow n proposed plan. T here was no re ason for a fu rt he r e vid e nti a ry he a ri ng , as the c us tod y iss ue ha d be e n ful ly he a rd and de te rm ine d. Th is i ssu e is-7-

wi tho ut m e ri t.

The mother f urther a rg ues that the Court err ed in putting in plac e a “ standard” visitation schedu l e, after stating that the mother should have “libera l contact” with the child. “L ibera l contact” , ho we v er , d oes not nec essar ily mean e qual time, or libera l visit ation. Contact could include visits, telephone c alls, or o t h er means of c ommunicating w ith the child. The Court he a rd a ll the pr oo f o n the c us tod y /vi sit a tio n issu e , a

nd ma de a de te rm inatio n r e g a rd ingwh a t it fe lt

wa s in the c hil d’ s b e st i nte re sts . T his iss ue is a lso wi tho ut m e ri t.
Finally , the mother a

rg ues that the par enting plan sig ned by the cour t is “ineffe ctive” b ec ause it does not contain a ce rtificate of ser vice a nd was a lleg edly

signe d in violation of rules de a lin g wi th c on te ste d or de rs a nd the tim e tho se or de rs sh a ll b e fi le d b y the c le rk . Sh e a sse rt s th e se rules ar e “to insure that a party is awa re of the exist ence of a f

inal, appea lable judg ment”. Id. Her e, the mother wa s clea

rly awa re of the exist ence of a f

inal, appea lable judg ment, i.e. the Court’s Or der enter ed on May

14, 2007, from which the mother has a ppeale d.

I n that Orde r, t

h e Court stated the pa

rties would attempt to formulate a pare nting plan, but if they

wer e unable to do so, the C ourt would decide the s ame. This occ urre d, when the Court enter ed the f

ather ’s proposed plan rather than the m other’s, as was in its discretion. The pa renting pla n is sim ply a n e xten sio n of the Court ’s c us tod y de te rm inatio n. Th is iss ue is a lso wi tho ut m e ri t.

B oth pa rt ie s argue the y sh ou ld be g ra nte d a n a wa rd of a tto rn e y ’s fe e s f

or thi s a pp e a l. P u r s u a n tt o T e n n

. C o d e A n n

. § 3 6

- 5

- 1 0 3 ( c ) , a n a w a r d o f a t t o r n e y’ s f e e s b y t h e C o u rti s d i s c r e t i o n a r y. I n the abse nce of

eg reg ious conduct by

a par ty , fee awa

rds in these c ases a

re nor mally based on fi na nc ia l c on sid e ratio ns . T hu s, it s ho uld be no te d the re c or d sho ws the mot he r ea rn s a g ro ss i nc ome of $1,964.00 per

month, and the father earns a g ross income of $2,375.00 per month. On thi s rec ord,

we c on c lud e it i s n ot a

pp ro pr ia te to a

wa rd e ith e r p a rt

y a tto rn e y ’s fe e s in c ur

re d o n a pp e a l.

Th e Judg me nt of the Tr ia l Cour t is a ff ir me d, a nd the c a us e re mand e d, wi th t

he c os t of the a pp e a l a sse sse d to Pa ig e To wn so n Ly le s.

______________________________ H ER SCH EL P I CKE N S F RAN KS , P

. J.