IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

August 22, 2018 Session

KIM RENAE NELSON V. LORING E. JUSTICE

Appeal from the Juvenile Court for Roane County

No. 16002 Don R. Ash, Senior Judge

No. E2017-00895-COA-R3-CV

A mother filed a complaint seeking to establish paternity. After years of litigation, the 

trial court established paternity and designated mother as the primary residential parent. 

The trial court determined that the father engaged in conduct that necessitated limiting his 

residential parenting time with the child. As a result, the trial court fashioned a 

residential parenting schedule that severely restricted the father’s parenting time, and the 

father appealed. We affirm the trial court’s judgment in all respects. 

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

ANDY D. BENNETT, J., delivered the opinion of the Court, in which D. MICHAEL SWINEY,

C.J., and THOMAS R. FRIERSON, II, J., joined.

Linn M. Guerrero Justice and B. Chadwick Rickman, Knoxville, Tennessee, for the 

appellant, Loring E. Justice.

Cecilia Petersen, Lynn C. Peterson, and David Lawrence Valone, Knoxville, Tennessee,

and Martha Meares, Maryville, Tennessee, for the appellee, Kim Renae Nelson.

OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

This case involves a protracted and bitter custody dispute. The minor child at 

issue, Noah Nelson, was born in February 2005 to Kim Renae Nelson (“Mother”) and 

Loring E. Justice (“Father”). Mother and Father were never married, and their three-year 

relationship ended shortly after they learned of the pregnancy in the summer of 2004. 

Mother is an attorney employed as the public defender for Roane County. Father is a 

self-employed attorney.

01/25/2019
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On July 29, 2004, Mother filed a complaint against Father to establish paternity

and to obtain child support, prenatal and birthing expenses, attorney’s fees, and a

temporary restraining order. The trial court issued a temporary restraining order that day 

prohibiting Father “from coming about or contacting” Mother. In response to Father’s 

motion for a more definite statement, Mother filed an amended complaint on September 

24, 2004, vividly detailing allegations of rape and erratic behavior by Father.1 Father 

filed an answer and counter-complaint seeking an order of parentage recognizing him as 

Noah’s legal father, directing that the child’s surname be changed to “Justice,” awarding 

him “the sole and exclusive, care custody and control” of the child, and ordering Mother 

to pay child support. 

The trial court entered a temporary order on July 16, 2005, granting Father 

parenting time “every Tuesday, Thursday, and Sunday afternoon from 2:00 to 5:00 p.m.”

and ordering him to pay $871 per month in child support. Additionally, the court ordered 

that the paternal grandmother accompany Father to the custody exchanges and that she 

remain with him while he exercised his parenting time with the child. On August 11, 

2006, the trial court entered a second temporary order modifying Father’s parenting time. 

The court removed the requirement that the paternal grandmother be present during 

Father’s parenting time and provided Father parenting time overnight “[e]very Tuesday at 

2:00 p.m. until the following Wednesday at 2:00 p.m.” The order further provided Father 

parenting time “[e]very Thursday and Sunday from 2:00 p.m. to 6:00 p.m.”

The case remained hotly contested until April 2007. After Father took Mother’s 

deposition in April 2007, there was a ceasefire in the litigation and the case went dormant 

for several years. During most of this dormant period, the parties followed the parenting 

schedule provided in the August 11, 2006 temporary order. Once Noah started school in 

2010, however, it became necessary to modify the parenting schedule to provide Father 

parenting time when Noah was not in school. 

Mother prepared an agreed permanent parenting plan that provided Father with 

109 days of parenting time per year. This plan became known as the 2010 parenting 

plan. Pursuant to this plan, Father had the majority of his parenting time every “Tuesday 

at 5:00 p.m. to Wednesday morning beginning of school”2and every other week from 

 

1 Mother alleged in her amended complaint that, while she and Father were on vacation in Italy in June 

2004, Father threatened to “beat the sh** out of [her]” after she refused to marry him. Mother fled their 

hotel room while Father checked his e-mail messages in the lobby of the hotel, and she spent the 

remainder of the night hiding in the stairwell. Upon returning to their room the next morning, she noticed 

clothes soaking in the bathtub. Mother alleged that, after she inquired about the clothes, Father angrily 

explained that he had a fecal incident due to receiving an upsetting e-mail. When Mother asked why 

some of her clothes were in the bathtub, he responded, “[I]f my clothes have to soak in sh** then so do 

yours.” 

 

2

Father had parenting time with the child every Tuesday from 5:00 p.m. until Wednesday at 5:00 p.m. 

during the summer.
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Friday at 6:00 p.m. until Sunday at 6:00 p.m. Additionally, this plan provided that both 

parents, after providing 45 days written notice, “may elect to have five (5) consecutive 

days with the child for a vacation” each summer. Father refused to sign the 2010 

parenting plan, but he and Mother followed the parenting schedule provided in the plan

for approximately three years.

Although the case had gone dormant, there was no easing of tensions between the 

parties, and their already strained relationship further deteriorated in 2011. Mother 

attended one of Noah’s basketball games with her boyfriend, Robert Bodine, in late 

January. They noticed Father and his mother sitting in a different section of the 

gymnasium. At one point during the game, Mr. Bodine went to the section where Father 

and his mother were and sat behind them; Mr. Bodine did not speak to them. Mother and 

Mr. Bodine, while standing outside the gymnasium after the game, observed Father and 

his mother get in their car to leave. As Father drove by, Mr. Bodine made an obscene 

gesture involving the middle finger. 

Several months later, Noah was diagnosed with strep throat. He was given an 

antibiotic and Mother dropped him off at the paternal grandmother’s home for Father’s 

parenting time. She informed Father of Noah’s diagnosis and that the doctor said Noah 

could go to school the next day. She stressed that Noah really wanted to attend school 

the next day because it was the last day of the school year and he would find out who his 

teacher was for the following school year. Mother called the school the following 

morning and learned that Father had not taken Noah to school. Shortly thereafter, 

accompanied by a police officer, Mother went to the paternal grandmother’s home to 

retrieve Noah and take him to school. She took him to school long enough to learn who 

his next teacher would be and then returned him to the paternal grandmother’s home for

the remainder of Father’s parenting time.

In the late summer of 2012, Mother married Mr. Bodine, and Noah accompanied 

them on their honeymoon. Mother notified Father of the dates of the vacation earlier in 

the summer as required by the 2010 parenting plan, and she believed that he did not have 

a problem with her taking Noah during those days. Unfortunately, Father did have a 

problem with Mother taking Noah on vacation for those days because Noah missed one 

day of parenting time with Father. While Mother was on her honeymoon, Father 

informed her that they would “have to return to court,” and he reinitiated this case the day 

after she returned home by noticing her for a second deposition. In the following months, 

Father filed numerous pleadings in this case and filed two separate law suits against 

Mother: one against her and Mr. Bodine regarding the obscene gesture Mr. Bodine made 

at Father following Noah’s basketball game and another against Mother to remove her 

from her position as the court clerk of Roane County,

3

accusing her of extortion and 

 

3 Mother was the court clerk of Roane County before she became the public defender of Roane County.
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witness intimidation because she threatened to disseminate a document that could cause 

harm to Father.

Noah began experiencing anxiety about visits with Father and school personnel 

witnessed his anxiety at the beginning of the school year in August 2013. On the 

morning of one incident, Father took Noah to school after exercising overnight visitation. 

Noah began crying after Father left. He explained to school personnel that he was upset 

because Father had yelled at him. When the principal called Mother, she went to the 

school to console Noah. Noah calmed down enough to go to class after speaking with 

Mother. 

Following this incident, Mother filed an emergency motion to suspend Father’s 

parenting time. She alleged that she took Noah to see psychologist Dr. Vey Nordquist

due to her concerns “about the child’s well-being and state of mind because of comments 

made by the child after his visits with his Father.” She attached to her motion the 

affidavit of Dr. Nordquist, recommending that Father’s visits be limited to a weekly twohour supervised visit “in a safe setting where Noah does not feel that he has to act out a 

role in order to placate his father’s wishes.” After hearing Mother’s motion, the trial 

court entered an order on September 13, 2013, finding it was in Noah’s best interest that 

Father’s parenting time be restricted to two hours of supervised visitation per week at a 

facility called Parent Place. The court based its decision, in large part, on the incident at 

school and the testimony of Dr. Nordquist.

There was a delay in arranging supervised visits at Parent Place following entry of 

the September 13, 2013 order. In the interim, Father exercised his weekly two hours of 

supervised parenting time at the McDonald’s in Kingston, Tennessee. Charlotte and 

William Hazelwood, Mother’s mother and step-father, supervised these visits. Father and 

his girlfriend, Linn Guerrero, often recorded the visits at McDonald’s, using cameras that 

were hidden in items such as pens, eye glasses, and drinking glasses. Noah discovered 

that Father was secretly recording the visits and requested that the maternal grandmother 

alert him if she saw Father activate one of the cameras. During one of the visits at 

McDonald’s, Father activated a camera and the maternal grandmother signaled Noah by 

nudging him with her foot. Father observed this and reported the maternal grandmother 

to the Department of Children’s Services (“DCS” or “the Department”) for abuse, 

alleging she kicked Noah. The Department investigated the incident and found no 

evidence of abuse. During another visit at McDonald’s, Father’s associate, Chadwick 

Rickman, served the maternal grandmother with a notice for a deposition in Noah’s 

presence. 

 

Following a lengthy period of discovery, the case finally made it to trial. The trial 

court heard the matter over the course of nearly two years on the following twenty-two 

days: May 11-14, 2015; September 21-26, 2015; December 21-24, 2015; August 8-11, 

2016; February 21-22, 2017; and March 29-30, 2017. A significant amount of the 
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evidence presented at trial concerned whether or not the problems in Father’s relationship 

with Noah were the result of a campaign by Mother to alienate Noah from Father.

Lay Witness Testimony

Mother’s proof focused on establishing that Father’s own actions caused the 

problems in his relationship with Noah. Kelly Ross, Father’s ex-wife, testified on behalf 

of Mother. Ms. Ross married Father in 2009, and they were married for approximately 

two years. She testified in regard to Father’s history of controlling and abusive behavior. 

Ms. Ross stated that she endured “berating, emotional, sexual, [and] physical . . . abuse” 

while married to Father. He isolated her and made her feel ashamed to be around her 

family by telling her that they would be disappointed by all of the things she had done in 

her life. While she was pregnant with their child, he had her write a confession detailing 

all of the wrongs she allegedly committed prior to their marriage, such as kissing another 

man. In Ms. Ross’s written confession, Father also had her write that she relinquished 

her parental rights to the unborn child because she deceived Father about her alleged 

wrongs and because he “would be the best parent and caregiver” for their child. 

Tragically, the child was stillborn. Father and his brother told her she could not visit her 

child, who was buried in Father’s family cemetery. 

Ms. Ross also testified in regard to an incident she reported to the police during 

her marriage to Father. She told the police that she and Father had fought and then had 

sexual intercourse. When asked if she had consented to sexual intercourse with Father on 

that occasion, Ms. Ross responded, “I don’t know how to answer this question except for 

I was never in a position to say no.” She explained that she felt that way because “[she] 

was afraid of him, and [she] knew if [she] had sex with him, he would typically not be 

angry anymore.” Finally, counsel for Father asked Ms. Ross if Father was a good father 

to Noah based on her observations. She responded that “[h]e appeared to be a good 

buddy. Making meals, helping study, parental things, the caring portion was done by his 

mother.” 

Mother testified about her tumultuous three-year relationship with Father. Similar 

to Ms. Ross, Mother testified that Father interrogated her about her past and became 

upset when she admitted to kissing another man prior to meeting Father and to smoking

cigarettes in the past. He then accused her of lying to him and shamed her for her 

behavior. On another occasion, Father objected to the clothing Mother planned to wear 

while on vacation with him, stating “You are not wearing a t-shirt on the plane. . . I’m not 

showing up in Europe with you looking like white trash.” Mother stated that Father 

“made [her] feel like [she] would never be good enough for him and that he could never 

trust [her].” Near the end of their relationship, she was upset about how he had been 

treating her and confronted him about it. According to Mother, Father responded by 

slapping her across the face and “forc[ing] [her] to have sex with him.” 
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Upon learning that Mother was pregnant, Father declared it was “a good thing” 

and insisted that she marry him. She informed him that she could not marry him in light 

of the way he had treated her. Father then threatened her by stating, “I have more money 

than you and I will take you to court and I will break you and I will take this baby from 

you.” Mother stated that Father abused her and Ms. Ross because he acted “out of some 

sort of sick vengeance” to punish them for refusing to “go along with what he want[ed].”

 

Mother also testified about Father’s controlling and abusive behavior towards 

Noah. For instance, Father had “interrogated” Noah and repeatedly videotaped visits 

with him using hidden video cameras. On the night before the incident where Mr. Bodine 

made the obscene gesture at Father, Noah appeared “very sad and upset.” When Mother 

inquired about why he was upset, Noah responded, “My dad told me I’m not any good at 

basketball and I’m wasting my time and I don’t have any talent.” 

Mother testified that, although Noah appeared smiling in photographs taken during 

a vacation with Father in 2013, Noah’s smile was not genuine because he had to smile or 

Father would punish him. Specifically, she stated that Noah told her Father “put him in 

time out for not smiling in a picture.” Additionally, during a supervised visit at 

McDonald’s, Father “terrified” Noah by telling him “you’re leaving with me tonight.” 

Noah then developed a fear of kidnapping so severe that, on one occasion when a new 

supervisor appeared for a visit and was overly friendly with Father, Noah was afraid that 

the supervisor was going to help Father kidnap him.

 

 Mother testified that she has attempted to promote a positive relationship 

between Father and Noah. She voluntarily expanded Father’s parenting time in 2010. 

Again, in 2015, she voluntarily expanded Father’s parenting time from two hours per 

week supervised visitation to two hours per week supervised visitation plus six hours 

supervised visitation on the second and fourth Saturday of every month. Mother 

explained that she arranged for the additional visits to be supervised by the Assurance 

Group rather than Parent Place because it would be more conducive to relationship 

building. Parent Place limited Father’s visits to the Parent Place facility, but the 

Assurance Group allowed Father more freedom to interact with Noah by allowing him to 

take Noah to play tennis, swim, or visit the paternal family. A supervisor from the 

Assurance Group accompanied Father and Noah on these outings. 

Mother acknowledged that she discussed with Noah the contents of some 

interrogatory questions she answered in August 2013. In those interrogatories, Mother 

disclosed some of the things Noah had told her about Father. She told Noah that Father 

now knew about some of the things Noah had mentioned to her. Mother explained that 

she had this discussion with Noah because he had an upcoming visit with Father and she

knew Father “well enough to know that you don’t go and tell people things about him or 

you will be punished for it.” She did not want to send Noah for that visit unprepared for 

“the attack, the interview, the interrogation.” According to Mother, “that’s exactly what 
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happened. [Noah] was interrogated and . . . he came to school the next morning upset.”

The trial court found Mother credible.

 

Two witnesses, Sheila Sitzlar, the principal of Noah’s school, and Patricia Rowan, 

Noah’s third grade teacher, testified in regard to Noah being upset at school on the 

morning of August 14, 2013. When the children arrive at the school in the mornings, 

they must go to the gymnasium to read until school begins at 8:30 a.m. On the morning 

of August 14, 2013, Ms. Rowan was monitoring the third graders in the gymnasium. She 

testified that “Noah came into the gym and he was crying hysterically.” He repeatedly 

stated, “My dad screamed at me and he was mean to me.” Ms. Rowan escorted Noah 

from the gymnasium and into the hallway where Ms. Sitzlar was standing. According to 

Ms. Sitzlar, she took a crying Noah to her office at approximately 8:20 a.m. and Ms. 

Rowan returned to the gymnasium. Thereafter, Ms. Sitzlar called Mother to inform her 

that Noah was upset. Mother came to the school, and Ms. Sitzlar observed that Noah 

calmed down enough to go to class after speaking with Mother. Both Ms. Sitzlar and Ms. 

Rowan stated they did not have a relationship with Mother outside of school.

Father’s proof focused on establishing that Mother’s actions, not his, caused the 

problems in his relationship with Noah. Six employees and volunteers from Parent Place 

testified on behalf of Father. All six witnesses supervised at least one of Father’s visits 

with Noah. Prior to scheduling the first visit at Parent Place, the visiting parent must set 

three goals to work towards during visits. At the end of each visit, the supervisors 

document whether or not they determined it to be a good visit. This determination is 

based, in part, on whether the visiting parent met all three goals during the visit. It is also 

based on the quality of the interaction between the visiting parent and the child. 

Father set the following three goals to work towards during his visits with Noah: 

(1) “to promote learning and school and a creative mind,” (2) to promote “a healthy 

lifestyle with diet and exercise,” and (3) “for Noah to enjoy his visits and promote his 

well-being.” The Parent Place witnesses testified that Father either met these goals or 

made progress towards them during most of his visits with Noah. He accomplished this 

by playing basketball, Pictionary, and videogames with Noah. Father also discussed 

school with Noah. According to the Parent Place witnesses, Noah often appeared to 

enjoy the visits with Father by laughing or clapping. Consequently, these witnesses rated 

most of Father’s visits with Noah as “good” or “very good.”

Father then presented testimony from two witnesses, Charles Elmore and David 

Pryor, who supervised some extended visits that occurred away from Parent Place. Mr. 

Elmore supervised a visit to Dollywood Splash Country and one to the Oak Ridge 

Children’s Museum. He testified that, during these visits, Father and Noah were 

“interactive” but “there was some tension.” Mr. Elmore did not observe any 

inappropriate behavior by Father. He acknowledged, however, that Noah expressed some 

anxiety on the way home from Dollywood due to an incident that occurred during the 
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visit where Father removed his sunglasses and twitched or wiggled his eyes at Noah. 

Initially, Mr. Elmore assumed this was a game but, on the way home, Noah began crying 

and saying Father “did the eye thing again” and “the twitching of the eyes scared him.” 

Mr. Pryor was the minister at Mother’s church, and he supervised an extended 

visit where Father took Noah to the zoo. According to Mr. Pryor, Father and Noah joked 

with one another and Noah appeared to enjoy the visit. He stated that Father went “out of 

[his] way to give [Noah] a good time that day.” Mr. Pryor believed that Father acted a

“little bit inappropriate” when they first entered the zoo because he made a joke about the 

snakes getting out which “seemed to really unnerve Noah a bit with his fear of snakes.” 

Besides that incident, Mr. Pryor did not observe any inappropriate behavior by Father.

James Frederick, a tennis instructor at the Knoxville Racquet Club where Father 

played tennis, testified next. Mr. Frederick testified that he has consistently seen Father 

at the racquet club three times per week since 2006. When he would see Father at the 

club, Father always appeared to have a positive and friendly demeanor. Mr. Frederick 

had never witnessed Father do anything inappropriate while at the racquet club. For 

approximately two years, Mr. Frederick was Noah’s tennis coach. He stated that Noah 

appeared to enjoy playing tennis because he had a positive attitude and “laughed a lot.” 

During this time period, Mr. Frederick had opportunities to observe Father playing tennis 

with Noah. Noah never displayed any anxiety or fear of Father. Rather, he appeared 

“happy to be on the court with [Father].” He described Father as “a very positive parent 

to [his] tennis-playing child” because Father never yelled at Noah and never really 

corrected him when he made mistakes. On cross-examination, Mr. Frederick 

acknowledged that he did not know Father outside of the time he observed him playing 

tennis at the racquet club. Consequently, he was unaware that Father had been accused 

of lying to a federal court and to the Board of Professional Responsibility.

The next witness was Father. He testified at length about things Mother did to 

alienate Noah from him, including not notifying him of Noah’s birth “until significantly 

after” and not listing him on Noah’s birth certificate. Father’s efforts to establish an 

educational fund for Noah were delayed because Mother would not give him Noah’s 

Social Security number. He admitted, however, that he did not mention to Mother that he 

wanted Noah’s Social Security number so he could set up an educational fund. Father 

acknowledged that Mother expanded his parenting time in 2010 but attempted to 

minimize this fact by explaining that it was “the result of a bargaining process” rather 

than “some unilateral gifting” by Mother. 

Father then testified that, after litigation resumed in 2012, Mother threatened to 

release a confidential document if Father insisted on taking her deposition a second time. 

The confidential document Mother threatened to release was a seventy-four-page 

memorandum and order from the federal district court for the eastern district of 

Tennessee. In this memorandum and order, the district court disciplined Father for 
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improper billing. Father explained that he filed the two separate lawsuits against Mother, 

in part, because she threatened to release this confidential document. Although Father 

acknowledged that Dr. Nancy Brown, a family psychologist who Father and Noah saw 

for family therapy, advised him to drop these other lawsuits, he initially disregarded this 

advice. Ultimately, Father did voluntarily nonsuit the two separate lawsuits against 

Mother, but he admitted he could still refile those lawsuits within one year. 

Regarding income, Father stated that, at the time of trial, his income was negative 

$3,200 per month, totaling $38,400 in negative income per year. Despite reporting a 

negative income, Father still managed to pay two of his experts approximately $200,000 

each. He testified that he had approximately $100,000 in savings that he was using to 

pay his living expenses and his experts. He had also used his home equity line of credit 

to pay his experts. The trial court found Father not to be credible.

Linn Guerrero, Father’s fiancée, testified next on behalf of Father. She began 

spending time with Father and Noah in 2013 and observed that Noah was “a jokester” 

who liked to laugh. In 2013, Ms. Guerrero went on vacation to Key West, Florida with 

Father and Noah. She described Noah as upbeat, energetic, and “very affectionate” 

during the vacation, stating that “[t]here was a lot of hugging going on and a lot of I love 

you’s.” Ms. Guerrero rarely observed Father discipline Noah because Noah was well 

mannered. She did witness Father put Noah in time out while in Key West because he 

was “goofing off” when Father wanted to “take a nice picture.” Ms. Guerrero admitted 

that she assisted Father in secretly video-recording visits with Noah but explained she did 

it because she wanted to show that “Noah was not having a bad time.”

Ms. Guerrero testified that she was employed as an attorney at Father’s law firm

earning $65,000 per year. She lived with Father at the time of trial and contributed her 

salary towards their living expenses. Specifically, she stated that she paid for groceries 

and Father paid the utilities.

 

Expert Testimony

Dr. Vey Nordquist

The trial court heard testimony from eight expert witnesses. The first expert to 

testify was Dr. Vey Nordquist on behalf of Mother. He earned his Ph.D. in clinical 

psychology in 1970 and was a professor at the University of Tennessee for forty-four 

years. Dr. Nordquist has conducted over 600 court-ordered custody evaluations and has 

knowledge pertaining to parental alienation.

Mother began taking Noah to Dr. Nordquist in May 2013. He testified that he did 

not perform the role of a therapist in this case, but rather the role of monitor, meaning he 

observed Noah’s behavior over a prolonged period of time. In his role as monitor, Dr. 
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Nordquist observed and interacted with Noah during eleven sessions he conducted over 

the course of a year. Although Dr. Nordquist primarily met with Noah during these 

sessions, he occasionally met with Mother as well. 

Dr. Nordquist testified that, during his sessions with Noah, he determined that 

Noah was fearful and “very, very apprehensive” about Father learning how Noah truly 

felt about him. Delving into the source of Noah’s fear of Father, Dr. Nordquist began by 

looking for a campaign of parental alienation by Mother. He opined, however, that she 

was not guilty of parental alienation. He explained that alienating parents “almost always 

. . . find ways to limit the contact” the other parent has with the child, but the opposite 

occurred in this case because Mother voluntarily expanded Father’s parenting time and 

invited him to major events in Noah’s life, such as graduation from preschool. Dr. 

Nordquist testified that he only witnessed one incident where Mother’s conduct could 

possibly be consistent with parental alienation: the incident where she discussed with 

Noah her answers to some interrogatories. Although Dr. Nordquist believed such 

conduct was inappropriate, he did not believe that made Mother an alienator because she 

did not act in a malicious manner. Rather, she was trying to prepare Noah for questions 

from Father about the information she disclosed. 

Dr. Nordquist concluded that, rather than being caused by a campaign of parental 

alienation by Mother, Noah’s fear resulted from Father engaging in psychological 

control. He explained that psychological control occurs when a parent:

attempts to make a child feel responsible for the bad things that are going 

on from the parent’s view. Like if you don’t do it this way, then I’m going 

to be really disappointed in you or get angry with you, and . . . we wouldn’t 

be having this much trouble if you would just do what’s expected of you.

He further explained psychological control as follows:

THE WITNESS: Well, there’s huge literature on psychological control, as 

opposed to behavioral control. Behavioral control is where you use time 

out, you remove privileges and so on, age-appropriate kinds of behavioral 

consequences for behavior.

In psychological control, a parent can engage in -- well, there are at 

least six different strategies that are described in the literature. 

One is love withdrawal, for example. Another one -- and here you 

have a situation where a father allegedly, and I think that he’s even 

acknowledged this, has said that he’s going to put the mother in jail.
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According to Dr. Nordquist there are more subtle types of psychological control, 

such as facial expressions and voice tone, that children Noah’s age feel but are too young 

to articulate. Dr. Nordquist stated that, when Noah says Father is mean, he is referring to 

Father using these more subtle types of psychological control. In Dr. Nordquist’s 

opinion, Noah was estranged from Father due to Father’s own conduct—the use of

psychological control. 

Finally, Dr. Nordquist testified that Father filed a lawsuit against him, seeking 

$1.5 million for malpractice and emotional harm. In his opinion, this constituted another

form of psychological control. The trial court found Dr. Nordquist credible.

Dr. Nancy Brown

Dr. Nancy Brown, a licensed clinical psychologist since 1986, testified on behalf 

of Father. Over the course of this two-year trial, she testified three times. The trial court 

appointed Dr. Brown to conduct family therapy for Noah and Father. She conducted nine 

sessions of individual therapy with Noah, forty sessions of family therapy with Father 

and Noah, and one session of family therapy with Mother and Noah.

Dr. Brown recommended the trial court order Mother undergo individual therapy 

but stated it would be inappropriate for her to conduct the individual4therapy sessions 

with Mother. Although Dr. Brown believed it would be inappropriate for her to conduct 

individual therapy sessions with Mother, she admitted to conducting seventy individual 

therapy sessions with Father without a court order to do so and without advising the court 

of such. 

During the individual therapy sessions with Father, Dr. Brown focused on Father’s 

“relationship with Noah and how to reestablish the trust.” She felt she “had made a 

connection” with Father, stating that he listened to her suggestions and remained 

respectful even if he disregarded them. She admitted that she did not delve too deeply 

into past events, such as his videotaping and interrogation of Noah or Father’s 

relationships with women. Instead, Dr. Brown merely “focused on the present and the 

future” and advised Father to seek individual therapy from another psychologist for 

therapy related to past events. As far as she was aware, Father did not follow this advice. 

Dr. Brown also advised Father to dismiss his lawsuits against Mother because “lawsuits 

are very destructive to relationships.” 

Dr. Brown testified that, when Noah “lets his guard down,” he interacts positively

with Father, but he pulls back and cuts off emotional attachment after realizing he is 

having a good time. After fourteen months of therapy, Noah still did not want to be alone 

with Father. Despite Noah’s continued resistance, Dr. Brown recommended that the 

 

4 Dr. Brown also referred to individual therapy sessions as “collateral therapy.”
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court allow Father unsupervised visits, opining that any resulting issues could be resolved 

in therapy. 

With respect to parental alienation, Dr. Brown testified that it “really is not a 

diagnosis.” Nevertheless, she concluded that parental alienation was occurring in this 

case. Specifically, she concluded that Mother was alienating Noah from Father. When 

the court asked her to discuss the facts supporting her conclusion, Dr. Brown was unable 

to do so. She then admitted that her only experience with parental alienation was “with 

an article” about parental alienation. 

 

Dr. Brown suggested that Mother should participate in family therapy. Mother

resisted participating in family therapy with Dr. Brown, however, after Dr. Brown 

disclosed to Father the location of Noah’s birthday party, which Mother believed she had 

shared with Dr. Brown in confidence. Dr. Brown admitted that Mother raised complaints 

about the individual therapy sessions with Father, fearing that Dr. Brown would disclose 

conversations between Mother and Dr. Brown to Father, which he would then use to 

create “more court problems.”

The trial court removed Dr. Brown from her role as court-appointed family 

therapist and discredited her testimony, finding that “[h]er decision to conduct collateral 

therapy with [Father] without court approval certainly creates the appearance of bias and 

impropriety.”

 

Sarah Littlefield

The parties stipulated to the admission of the deposition of Sarah Littlefield, a 

marital and family therapist who conducted six individual therapy sessions with Noah. 

Noah began seeing her in the summer of 2014 while still seeing Dr. Brown for family 

therapy.

 

Ms. Littlefield testified that she had no experience with parental alienation. In her 

opinion, Noah suffers from anxiety caused by his concerns about seeing Father and 

Father yelling at him. Consequently, during her sessions with Noah, she focused on 

teaching him techniques to cope with his anxiety. The trial court found her credible. 

 

Dr. Tom Hanaway

Dr. Tom Hanaway testified on behalf of Mother. He is a licensed clinical 

psychologist and family therapist who earned his Ph.D. in 1975. After the court removed 

Dr. Brown from the case, Mother engaged Dr. Hanaway to conduct family therapy with 

Father and Noah. He explained that his goals were to move Father and Noah towards 

unsupervised visits and to resolve past problems that caused Noah to not want to visit 

with Father. In order to achieve these goals, Dr. Hanaway recommended the parties 
- 13 -

collaborate to establish trust, strengthen the relationship between Father and son by 

taking small steps, and improve parenting skills. Dr. Hanaway believed that, during the 

six months he was involved with the case, the parties were making progress because the 

sessions with Noah and Father were positive and several “hours long” unsupervised visits

had occurred.

Although the parties were making progress, Dr. Hanaway testified there remained 

some issues to resolve. For instance, Noah panicked and started hyperventilating each 

time Dr. Hanaway discussed him spending unsupervised parenting time with Father. 

Moreover, Noah expressed to Dr. Hanaway that he felt uncomfortable at the paternal 

grandmother’s home due to events that had occurred there, such as Father interrogating 

him about Dr. Nordquist. In May 2016, Noah mentioned to Dr. Hanaway that he 

experienced fear during a recent visit with Father because a new supervisor was present 

at this visit and appeared to be overly friendly with Father. Noah believed that the new 

supervisor was going to help Father kidnap him. Dr. Hanaway discussed this visit with 

Noah and Father during a family therapy session. He testified that, during this session, he 

explained to Noah that his fear was irrational and suggested that he should discuss similar 

fears with Mother or Father when he has them in the future. When the session concluded, 

Dr. Hanaway believed the issue was resolved. During a supervised visit two days later, 

however, Father confronted Noah and “browbeat” him about the kidnapping accusation. 

Father sat Noah down and, with a “stern and direct” voice, stressed the importance of 

being honest and not falsely accusing people. Dr. Hanaway opined that this incident 

caused Noah a setback in his relationship with Father and explained that what Noah was

experiencing with Father is similar to post-traumatic stress disorder (“PTSD”).

Dr. Hanaway testified that he found no evidence of parental alienation by Mother. 

Instead, he observed that Mother encouraged Noah to spend time with Father and to have 

a relationship with him. Dr. Hanaway admitted that he believed Noah was playing his 

parents “off of each other,” but he believed Father failed to take enough responsibility for 

what he had done to contribute to the situation.

Dr. Hanaway testified that he felt bullied by Father. Specifically, Father threatened 

to depose Dr. Hanaway and subpoena him to court when he refused to do something 

Father wanted him to do. Father’s behavior ultimately caused Dr. Hanaway, who was 

seventy-six years old at the time of trial, to have anxiety, stomach aches, and difficulty 

sleeping at night. Based on his experience with Father, Dr. Hanaway opined that Noah 

had probably had experiences with Father that frightened him. Dr. Hanaway 

recommended that the parties find a new family therapist. The trial court found Dr. 

Hanaway credible.
- 14 -

Dr. James Flens

Dr. James Flens, a board-certified clinical psychologist in Florida, testified on 

behalf of Father. He wrote an article on parental alienation that focused on one parent 

acting as a gatekeeper who “either opens or closes or keeps the door closed” to the other 

parent regarding access to or information about the child.

Dr. Flens did not interview or evaluate anyone in this case, not even Noah. 

Rather, he reviewed reports from Dr. Nordquist, Noah’s school, and the personnel 

supervising visits. He also reviewed various videos, depositions, and other documents 

associated with the case. He attended every hearing in this matter.

Despite there being no evidence that Mother made negative comments about 

Father and hearing proof that Mother voluntarily expanded Father’s parenting time 

between 2006 and 2013, Dr. Flens believed that Mother was alienating the child. He 

based his opinion, in large part, on his review of psychological test results for both 

parents from evaluations conducted earlier in the case by other psychologists.5 He 

explained that there is some correlation between psychological test results and parental 

alienation. For instance, alienators often present themselves during psychological testing 

as “having high morals and virtues” and being “holier than thou.” Dr. Flens testified that

the results from Mother’s psychological testing were consistent with those of an 

alienator. He explained that “[M]other was trying to make herself look good, much more 

. . . significantly than is common in these cases, where [F]ather did not.” He 

acknowledged that neither parent fostered a positive relationship between the child and 

the other parent. He repeatedly described Father as “intense.”

Dr. Flens testified that the supervised visits needed to end but recommended a 

gradual reunification with Father. He acknowledged that Noah experienced anxiety when 

around Father but stated that, if Noah was opposed to unsupervised parenting time with 

Father, he needed to “get over it.” Although Dr. Flens never interviewed Noah, he 

believed Noah could “get over it” because he is “a pretty tough kid.”

On cross-examination, Dr. Flens admitted that Father paid him $4,000 per day, for 

a total of more than $200,000. The trial court rejected Dr. Flens’s expert opinion.

Dr. Sol Rappaport

Dr. Sol Rappaport, a licensed clinical psychologist, also testified on behalf of 

Father. He primarily performs forensic evaluations, which he explained are “custody 

evaluations and psychological evaluations of children and adults.” He had testified as an 

expert witness over fifty times.

 

5 The psychologists who performed these tests did not testify at trial.
- 15 -

Dr. Rappaport reviewed reports of the supervised visits, correspondence between 

the attorneys in the case, and some court documents. He spoke to Noah’s pediatrician and 

personnel from his school. Additionally, over the course of two days, Dr. Rappaport 

spent approximately five hours interviewing Noah. Dr. Rappaport admitted he did not 

interview Mother, but he did spend several hours interviewing Father. He opined that 

Noah is an alienated child in regard to his relationship with Father. He believed that 

Mother contributed to Noah’s alienation because she had some anxiety about him visiting 

with Father and “Noah picks up on it.” Moreover, he found Noah to be “overly 

dependent on his mother for a child his age,” which caused separation anxiety issues.

Dr. Rappaport opined that the longer supervised visits continued, the more risk 

there was of harm to Noah because supervised visits send “implicit messaging that 

there’s something wrong.” He suggested a multi-layered therapy program for Father and 

Noah. Specifically, there should be a therapist who works with Father and Noah 

together, a therapist who works with each of the parents alone, and a therapist who 

oversees all of the treatment providers to ensure that they are all working together. Dr. 

Rappaport testified that he could not make a permanent custody recommendation.

The trial court found Dr. Rappaport’s testimony not credible because he based 

most of his opinions on conversations he had with Father, whom the court found not 

credible.

Dr. Edward Workman 

Dr. Edward Workman testified by deposition on behalf of Father. He is a clinical 

associate professor of neuropsychiatry at the University of Tennessee Medical Center. 

He primarily works with patients who have brain injuries, mood disorders, and PTSD.

Dr. Workman reviewed records from other experts associated with the case, 

records from the supervised visits, trial testimony, and depositions. He discussed 

numerous topics including parental alienation. Without psychologically evaluating either 

parent, Dr. Workman opined that Noah had been alienated from Father. He based his 

opinion, in large part, on statements Noah made when he was interviewed by Dr. 

Rappaport in 2016. For instance, Dr. Workman relied on statements Noah made 

indicating that he detected Mother experienced anxiety when he visited Father.

During cross-examination, Dr. Workman admitted that he could not objectively 

assess Mother because she threatened him. He further admitted to acting as an expert for 

Father approximately twenty-five times. The trial court found Dr. Workman not credible.
- 16 -

Dr. Salmaan Toor

Finally, Dr. Salmaan Toor, a licensed clinical psychologist, testified on behalf of 

Mother. Dr. Toor was conducting family therapy with Noah and Father at the time of 

trial. He testified that his treatment plan was to create an environment where Noah felt 

comfortable and then gradually work towards reunification with Father. He primarily 

focused on helping Noah manage his anxiety. Noah expressed to Dr. Toor that Father 

had done things in the past that caused anxiety for him, such as interrogating him, 

recording him on camera, yelling at him, and making an angry face at him. Noah further 

expressed to Dr. Toor that he preferred not to be alone with Father. Because Dr. Toor 

had no experience with parental alienation, he made no assessment regarding whether it

had occurred in this case. The trial court found Dr. Toor credible.

Trial Court’s Ruling

On April 11, 2017, the trial court entered an order finding that Father is Noah’s 

father, but Noah’s surname should not be changed to “Justice.” The court concluded that 

Mother did not alienate Noah from Father and designated her as the primary residential 

parent. The court then found Father had engaged in conduct that necessitated limiting his 

parenting time. Specifically, the court found that Father “has exhibited a pattern of 

manipulation, over-controlling and bullying in his life” that causes “serious concerns 

about his ability to parent since over the three years this Court has been assigned to this 

matter he continues this previously-established pattern.” As a result, the court entered a 

residential parenting schedule that gives Father zero days of parenting time with Noah.6 

Under this parenting schedule, Father has a mixture of supervised and 

unsupervised parenting time that is to occur in four stages. Stage one (May 1, 2017 to 

October 31, 2017) permits Father supervised parenting time the first and third Saturday of 

each month from 9:00 a.m. to 7:00 p.m. and every second and fourth Tuesday from 4:00 

p.m. to 7:30 p.m. During stage two (November 1, 2017 to April 30, 2018), Father may

exercise supervised parenting time every first and third Saturday from 9:00 a.m. to 7:00 

p.m. and unsupervised parenting time every second and fourth Tuesday from 4:00 p.m. to 

7:30 p.m. Stage three (May 1, 2018 to October 31, 2018) provides Father unsupervised 

parenting time the first Saturday of every month from 9:00 a.m. to 7:00 p.m. and 

supervised parenting time the third Saturday of each month from 9:00 a.m. to 7:00 p.m. 

This stage also permits Father unsupervised parenting time every second and fourth 

Tuesday from 4:00 p.m. to 7:30 p.m. Finally, stage four (November 1, 2018 until Noah 

reaches majority) provides Father unsupervised parenting time the first and third 

 

6 Despite providing Father with parenting time, the parenting plan states that Father has zero days of 

parenting time because Noah does not spend more than twelve consecutive hours in Father’s custody. See 

TENN. COMP. R. & REGS. 1240-02-04-.02(10) (“A ‘day’ of parenting time occurs when the child spends 

more than twelve (12) consecutive hours in a twenty-four (24) hour period under the care control or direct 

supervision of one parent or caretaker.”). 
- 17 -

Saturday of each month from 9:00 a.m. to 7:00 p.m. and every second and fourth 

Tuesday from 4:00 p.m. to 7:30 p.m.

The trial court then ordered Father to pay child support to Mother in the amount of 

$1,619 per month and awarded Mother her attorney fees in the amount of $376,638.90. 

Father appealed.

II. Standard of Review

We review a trial court’s findings of fact de novo upon the record, with a 

presumption of correctness, unless the evidence preponderates otherwise. TENN. R. APP.

P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). We review a trial 

court’s conclusions of law de novo, according them no presumption of correctness. 

Armbrister, 414 S.W.3d at 692; In re Piper H., No. W2015-01943-COA-R3-JV, 2016 

WL 5819211, at *4 (Tenn. Ct. App. Oct. 5, 2016). A trial court’s decision regarding a 

parenting arrangement is reviewed for an abuse of discretion. In re Noah J., No. W2014-

01778-COA-R3-JV, 2015 WL 1332665, at *3 (Tenn. Ct. App. Mar. 23, 2015). As the 

Tennessee Supreme Court has explained:

Because decisions regarding parenting arrangements are factually driven 

and require careful consideration of numerous factors, Holloway v. 

Bradley,190 Tenn. 565, 230 S.W.2d 1003, 1006 (1950); Brumit v. 

Brumit, 948 S.W.2d 739, 740 (Tenn. Ct. App. 1997), trial judges, who have 

the opportunity to observe the witnesses and make credibility 

determinations, are better positioned to evaluate the facts than appellate 

judges. Massey-Holt v. Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007). 

Thus, determining the details of parenting plans is “peculiarly within the 

broad discretion of the trial judge.” Suttles v. Suttles, 748 S.W.2d 427, 429 

(Tenn. 1988) (quoting Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn.

Ct. App. 1973)). “It is not the function of appellate courts to tweak a 

[residential parenting schedule] in the hopes of achieving a more reasonable 

result than the trial court.” Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn.

2001). A trial court’s decision regarding the details of a residential 

parenting schedule should not be reversed absent an abuse of 

discretion. Id. “An abuse of discretion occurs when the trial court . . . 

appl[ies] an incorrect legal standard, reaches an illogical result, resolves the 

case on a clearly erroneous assessment of the evidence, or relies on 

reasoning that causes an injustice.” Gonsewski v. Gonsewski, 350 S.W.3d 

99, 105 (Tenn. 2011). A trial court abuses its discretion in establishing a 

residential parenting schedule “only when the trial court’s ruling falls 

outside the spectrum of rulings that might reasonably result from an 

application of the correct legal standards to the evidence found in the 

record.” Eldridge, 42 S.W.3d at 88.
- 18 -

Armbrister, 414 S.W.3d at 693. The abuse of discretion standard does not allow 

appellate courts to substitute their judgment for that of the trial court, but it “‘reflects an 

awareness that the decision being reviewed involved a choice among several acceptable 

alternatives.’” Gonsewski, 350 S.W.3d at 105 (quoting Lee Med., Inc. v. Beecher, 312 

S.W.3d 515, 524 (Tenn. 2010)).

III. ANALYSIS

A. Trial Judge’s Recusal

Father sought recusal of Judge Ash several times during the two years of trial;

7

Judge Ash denied each request. On appeal, Father argues that Judge Ash should have 

granted a recusal because his rulings contain repeated misapplications of “fundamental, 

rudimentary legal principles’” that favored Mother “‘substantively and procedurally.” See 

Krohn v. Krohn, No. M2015-01280-COA-T10B-CV, 2015 WL 5772549, at *7 (Tenn. Ct. 

App. Sept. 22, 2015). 

Judges should recuse themselves if they “have any doubt about their ability to 

preside impartially in a case or when ‘a person of ordinary prudence in the judge’s 

position, knowing all of the facts known to the judge, would find a reasonable basis for 

questioning the judge’s impartiality.’” Krohn, 2015 WL 5772549, at *4 (quoting Davis 

v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 564 (Tenn. 2001)). Appellate courts review a 

trial court’s disqualification or recusal determination under a de novo standard of review.

TENN. SUP. CT. R. 10B, § 2.01.

Hoalcraft v. Smithson, No. M2000-01347-COA-R10-CV, 2001 WL 775602, at 

*16-17 (Tenn. Ct. App. July 10, 2001), is one of the few cases in Tennessee to use 

“repeated misapplication of fundamental, rudimentary legal principles” as a ground for 

recusal. In Hoalcraft, the trial court misapplied the burden of proof required in a custody 

case, conducted a hearing on a pleading despite all of the issues it raised being ruled upon 

previously by the Court of Appeals, disqualified one party’s attorney without reasonable 

cause, held a hearing in the absence of one party’s attorney after both sides had agreed to 

a continuance, and made suggestions to one party’s attorney concerning issues that 

should be raised on appeal. Id. at *16.

 

7 We note that, in Father’s last motion to recuse, he made the following comment about the trial judge: 

“This is such a loss of judgment a reasonable outside observer would find the proceedings corrupt.” Later 

in his motion, he shockingly referred to Judge Ash as “Yosemite Sam”: “When a Court’s persistent 

demeanor is less in the nature of Learned Hand or Oliver Wendell Homes and more Yosemite Sam, 

particularly in a matter involving child welfare, the Court cannot continue to preside.” 
- 19 -

In this case, Father has not asserted anything similar to what occurred in 

Hoalcraft. Rather, he asserts Judge Ash erred in his questioning of witnesses and in his 

statements on the record about Father.

The first error Father asserts is that Judge Ash “highjacked” his proof by 

questioning his witnesses. It is within the sound discretion and duty of a judge to clear up 

any confusion in the testimony or facts of a case. See Ching-Ming Chen v. Advantage 

Co., Inc., 713 S.W.2d 79, 82 (Tenn. Ct. App. 1986). The record reflects that Judge Ash 

did question some of Father’s witnesses. For instance, he questioned Dr. Brown 

regarding the nature of her individual therapy sessions with Father and the 

recommendations she made to him during these sessions. Later in the trial, Judge Ash 

questioned Father about his income in an effort to discern how he could claim a negative 

monthly income of $3,200 but still pay his bills. This was also the purpose behind Judge 

Ash questioning Ms. Guerrero about the salary she earned from Father’s law firm. 

Father also asserts that Judge Ash asked Dr. Flens questions in an attempt to 

intimidate him and sway his opinion that Mother alienated Noah from Father. The record 

does not support this assertion. Rather, the record shows that, while Dr. Flens explained

some of the intervention programs available for treating parental alienation, Judge Ash 

asked him if he recommended the court implement those programs at that time; Dr. Flens 

did not recommend the court do that. We find no abuse of discretion by the trial court in 

questioning Father’s witnesses.

The second error asserted by Father concerns statements Judge Ash made about 

Father. Father argues that Judge Ash demonstrated bias requiring recusal by repeatedly 

accusing Father of dishonesty. During trial, the parties disputed whether Noah should be 

called as a witness. When Judge Ash stated he could call Noah as a witness to hear his 

preference, Father told Judge Ash he did not have the authority to do that because a judge 

may only “call witnesses based on extraordinary circumstances.” According to Father, 

Judge Ash then “accused him of dishonesty and made a speech on how “‘disappointing’” 

[Father] was.” Moreover, Father asserts that Judge Ash accused him of dishonesty in the 

drafting of a declaration for Father’s brother, which stated the brother was a practicing 

physician. 

A thorough review of Father’s brief shows that his argument concerning this 

second asserted error fails to comply with the requirements of Rule 27 of the Tennessee 

Rules of Appellate Procedure or Rule 6 of the Rules of the Court of Appeals. Tennessee 

Rule of Appellate Procedure 27(a)(7)(A) requires that an appellant’s argument set forth 

“the contentions of the appellant with respect to the issues presented, and the reasons 

therefor, including the reasons why the contentions require appellate relief, with citations 

to the authorities and appropriate references to the record (which may be quoted 

verbatim) relied on.” (Emphasis added). Likewise, Rule 6(a)(1) requires that a written 

argument for each issue appealed contain:
- 20 -

A statement by the appellant of the alleged erroneous action of the trial 

court which raises the issue and a statement by the appellee of any action of 

the trial court which is relied upon to correct the alleged error, with citation 

to the record where the erroneous or corrective action is recorded. 

(Emphasis added).

Here, Father’s argument section regarding the second error requiring recusal 

provides citations to the record, but those citations are incorrect. Examination of the 

provided citations shows no mention of dishonesty, Noah being called as a witness, or the 

brother’s declaration. Generally, when a party fails to refer properly to the record or to 

cite to relevant authority, we consider that issue waived. Bean v. Bean, 40 S.W.3d 52, 55 

(Tenn. Ct. App. 2000). We have no duty “to verify unsupported allegations in a party’s 

brief or to research and construct the party’s argument.” Chiozza v. Chiozza, 315 S.W.3d 

482, 489 (Tenn. Ct. App. 2009). It is not the function of this court to search through fifty 

volumes of technical record and seventy-eight volumes of trial transcript to locate the 

portions of the record that support Father’s allegations. Thus, his argument regarding the 

second error requiring recusal is waived. 

In light of the foregoing, we conclude that Father failed to establish grounds to 

require the recusal of Judge Ash.

B. Rule 52.01

Father argues that the trial court’s final order violates Tennessee Rule of Civil 

Procedure 52.01 because the court failed to make specific findings of fact and 

conclusions of law. Specifically, he argues that “[t]here is no way this Court can trace 

the trial court’s chain of reasoning sufficiently” to uphold its ruling. Rule 52.01 provides, 

in pertinent part, that “[i]n all actions tried upon the facts without a jury, the court shall 

find the facts specially and shall state separately its conclusions of law and direct the 

entry of the appropriate judgment.” 

 

Specific findings of fact and conclusions of law serve three purposes. Lovlace v. 

Copley, 418 S.W.3d 1, 34 (Tenn. 2013). First, they facilitate appellate review by 

providing the reviewing court “a clear understanding of the basis of a trial court’s 

decision.” Id. Second, these findings clarify which issues the trial court is deciding so 

that the doctrines of estoppel and res judicata may be applied in future cases. Id. at 35. 

Third, this requirement serves “‘to evoke care on the part of the trial judge in ascertaining 

and applying the facts,’” perhaps thereby reducing the likelihood a case will appealed. 

Id. (quoting 9C Charles A. Wright & Arthur R. Miller, FEDERAL PRACTICE AND 

PROCEDURE § 2571, at 221-22 (3d ed. 2005)). 
- 21 -

In regard to appellate review of whether a trial court complied with Rule 52.01, 

our Supreme Court has stated:

There is no bright-line test by which to assess the sufficiency of factual 

findings, but “the findings of fact must include as much of the subsidiary 

facts as is necessary to disclose to the reviewing court the steps by which 

the trial court reached its ultimate conclusion on each factual issue.”

Id. (quoting 9C FEDERAL PRACTICE AND PROCEDURE § 2579, at 328). As a result, 

“[s]imply stating the trial court’s decision, without more, does not fulfill [the Rule 52.01] 

mandate.” Barnes v. Barnes, No. M2011-01824-COA-R3-CV, 2012 WL 5266382, at *8 

(Tenn. Ct. App. Oct. 24, 2012).

Here, the trial court made specific findings of fact regarding each expert witness, 

parental alienation, and whether Noah’s surname should be changed. The court also 

made specific findings of fact for each factor Tenn. Code Ann. § 36-6-106(a) requires a 

court to consider when fashioning a residential parenting schedule and each of the factors 

listed in Tenn. Code Ann. § 36-6-406 that would necessitate limitation of Father’s 

residential time with the child. Based on these findings, the court concluded that Mother 

should be the primary residential parent and Father’s parenting time should be limited. 

The trial court did more than simply state its decision. Rather, it provided sufficient 

findings to reveal the steps it followed to reach its ultimate decision. We conclude that 

the trial court’s order satisfies the requirements of Rule 52.01.

C. Witness Credibility

Father argues that the trial court abused its discretion in finding Mother credible 

but finding Father and his expert witnesses not credible. Appellate courts “afford trial 

courts considerable deference when reviewing issues that hinge on the witnesses’ 

credibility because trial courts are ‘uniquely positioned to observe the demeanor and 

conduct of witnesses.’” Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014) (quoting State 

v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000)). We will not reevaluate a trial court’s 

assessment of a witness’s credibility unless there is clear and convincing evidence to the 

contrary. Id. Evidence is clear and convincing if it “eliminate[s] any ‘serious or 

substantial doubt about the correctness of the conclusions drawn from the evidence.’” Id.

at 692-93 (quoting State v. Sexton, 368 S.W.3d 371, 404 (Tenn. 2012)). 

Appellate courts do not apply the same deferential standard when the trial court’s 

findings of fact are based on documentary evidence such as depositions, transcripts, and 

video recordings. Id. at 693. Instead, “[w]hen factual findings are based on documentary 

evidence, an appellate court may draw its own conclusions with regard to the weight and 

credibility to be afforded that documentary evidence.” Id.
- 22 -

In the present case, Mother testified in court during the trial. Father then entered 

both of her depositions into evidence. On appeal, Father relies on these depositions to 

argue that Mother was not a credible witness. Because the depositions constitute 

documentary evidence, we may draw our own conclusions about the weight and 

credibility to be given to this evidence. A thorough review of Mother’s depositions 

shows that, although there were some inconsistencies, the majority of her deposition 

testimony corresponded to her in-court testimony. Moreover, most of the inconsistencies 

pertained to things that occurred before the child was born. We afford little weight to this 

evidence and find no abuse of discretion in the trial court’s determination that Mother 

was a credible witness.

With respect to Father’s expert witnesses, the trial court found that Drs. Flens, 

Rappaport, and Workman were not credible. Drs. Flens and Rappaport testified in court. 

Father does not present clear and convincing evidence contradicting the trial court’s 

finding that these two witnesses were not credible. We, therefore, decline to reverse the 

trial court’s credibility assessment of these two witnesses.

Dr. Workman, on the other hand, testified by deposition. A thorough review of 

Dr. Workman’s deposition reveals that he opined Noah had been alienated from Father. 

He admitted, however, that he formed this opinion without psychologically evaluating 

either parent and without interviewing Noah. Rather, he based his opinion on statements 

Noah made to Dr. Rappaport. Dr. Workman admitted he could not give an objective 

assessment of Mother because she threatened him. In light of this testimony, we 

conclude, as the trial court did, that Dr. Workman is not credible. 

D. Rule 408

 Father next argues that the trial court erred in excluding a proposed agreed order

and parenting plan. The proposed order and parenting plan were the result of lengthy 

settlement negotiations the parties entered into on August 10, 2016. Pursuant to the

proposed order, Father would pay Mother $200,000 for her attorney fees and $200,000 

for child support arrearages. Ultimately, the settlement negotiations failed and the parties 

did not sign the proposed order and parenting plan. At trial, Father took the position that 

Mother did not believe her contention that supervised visitation was necessary. Rather, 

she intended to allow Father unsupervised parenting time with Noah in exchange for 

$400,000. Father attempted to support this argument by entering the proposed order into 

evidence. The trial court found that the proposed order was evidence of settlement 

negotiations and excluded it under Tenn. R. Evid. 408. 

 

Tennessee Rule of Evidence 408 provides that evidence of offering or accepting

consideration in the compromise of a claim is “not admissible to prove liability for or 

invalidity of a civil claim or its amount or a criminal charge or its punishment.” 

Evidence of conduct or statements made during settlement negotiations is also not 
- 23 -

admissible. TENN. R. EVID. 408. Rule 408 does not, however, “require exclusion when 

the evidence is offered for another purpose, such as proving bias or prejudice of a 

witness, negativing a contention of undue delay, or proving an effort to obstruct a 

criminal investigation or prosecution.” 

In the present case, Father asserts that the proposed order should not have been 

excluded under Rule 408 because it was offered for a purpose other than proving liability 

on a civil claim or the monetary amount. Instead, he asserts it was offered to prove that 

Mother attempted to extort money from him during the settlement negotiations by 

holding Noah hostage and offering Father unsupervised visitation in exchange for 

$400,000. Relying on Uforma/Shelby Business Forms, Inc. v. N.L.R.B., 111 F.3d 1284, 

1293 (6th Cir. 1997), Father argues that Rule 408 is inapplicable to wrongful acts 

committed during settlement negotiations. 

Uforma involved a corporation charged with violating the National Labor 

Relations Act in various ways, including threatening the union. Uforma, 111 F.3d at 

1287. At trial, the union supported this claim by introducing evidence that, during 

compromise negotiations, the corporation threatened to eliminate the third shift if the 

union pursued its grievance. Id. at 1287-88. The corporation argued this evidence should 

have been excluded as settlement negotiations. Id. at 1293. The Sixth Circuit Court of 

Appeals interpreted Federal Rule of Evidence 408, which is essentially identical to the 

Tennessee rule, and concluded that the rule “does not exclude evidence of alleged 

threats.” Id. at 1294. As the court explained, “‘Rule 408 is . . . inapplicable when the 

claim is based upon some wrong that was committed in the course of the settlement 

discussions.’” Id. at 1293 (quoting 23 Charles Alan Wright & Kenneth W. Graham, Jr., 

FEDERAL PRACTICE AND PROCEDURE: Evidence § 5314 (1st ed. 1980)). 

The present case is distinguishable from Uforma. Unlike in Uforma, none of the 

evidence Father sought to introduce tends to show that Mother engaged in extortion or 

holding Noah hostage. The proposed order allowed Father unsupervised parenting time

but makes no reference to him paying Mother for that unsupervised parenting time. 

Rather, the proposed order provided he would pay Mother $200,000 for her attorney fees 

and $200,000 for child support arrearages. If hostage negotiations could be established 

merely by one parent offering parenting time to the other parent in connection with 

attorney fees and child support, every case involving parenting time with a child and a 

child support determination coupled with an award of attorney fees would constitute a 

hostage negotiation. Thus, we conclude that Father’s offered proof fails to show that 

Mother committed a wrongful act that would render Rule 408 inapplicable. 

 

Father also asserts that the proposed order should not have been excluded under 

Rule 408 because it shows Mother maintained her claim in bad faith. Specifically, he 

argues that the fact Mother offered him unsupervised parenting time proves she did not 

believe her legal position that supervised parenting time was necessary. In support of this 
- 24 -

argument, Father relies on Mendenhall v. National Transportation Safety Board, 92 F.3d 

871 (9th Cir. 1996), a case involving a commercial pilot whose license was wrongly 

revoked by the Federal Aviation Administration (“FAA”). Mendenhall, 92 F.3d at 873-

74. The pilot’s attorney informed the FAA that the pilot had complied with FAA 

recommendations and requested that the matter be dismissed, but the FAA declined to do 

so. Id. at 874. The attorney for the FAA then called the pilot’s attorney and 

acknowledged that the pilot was qualified to hold a commercial pilot certificate. Id. at 

873. The attorney for the FAA informed the pilot’s attorney that the FAA would dismiss 

the complaint if the pilot would waive reimbursement for attorney fees under the Equal 

Access to Justice Act (“EAJA”). Id. at 873-74. After the FAA dismissed the order 

revoking the pilot’s certificate, the pilot filed an application for reimbursement of her 

attorney fees under the EAJA. Id. at 874. At the hearing on the pilot’s application, 

evidence of the conversation between the attorneys was excluded as evidence of 

settlement negotiations. Id. at 876. As a result, the application was denied. Id. at 874. 

On appeal, the Mendenhall court reversed the administrative agency’s decision, finding 

that the attorneys’ conversation should not have been excluded. Id. at 876-77. 

Father’s reliance on Mendenhall is misplaced. The Mendenhall court recognized

that “the agency’s continuation of an action it knew to be baseless . . . is a prime example 

of ‘bad faith.’” Id. at 877. The court concluded that the administrative agency erred in 

denying the pilot’s application for fees because evidence relating to the conversation 

between the FAA attorney and the pilot’s attorney was improperly excluded under Fed. 

R. Evid. 408. Id. at 876. Contrary to Father’s argument, however, the court did not 

conclude that Rule 408 was inapplicable due to “bad faith.” Rather, the court explained

that the conversations did not constitute settlement negotiations shielded by Rule 408 

because “there was nothing to settle at the time these conversations occurred.” Id. 

Unlike Mendenhall, the proposed order in this case occurred at a time when numerous 

issues remained to be settled, and the parties were, in fact, engaged in settlement 

negotiations. Thus, we find no error in the trial court’s decision to exclude the proposed 

order under Rule 408.

E. Other Evidentiary Issues

1. Hearsay Evidence

Father argues that the trial court erroneously excluded thirty-nine pieces of 

evidence as hearsay. This section of his appellate brief, however, fails to comply with 

Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure because he provides 

conclusory statements with no argument or legal authority to support his claims. It is not 

the role of this or any court “to research or construct a litigant’s case or arguments for 

him.” Sneed v. Bd. of Prof’l Responsibility of Sup. Ct. of Tenn., 301 S.W.3d 603, 615 

(Tenn. 2010). As previously mentioned, a party waives an argument if he or she fails to 
- 25 -

comply with the requirements of Tenn. R. App. P. 27(a)(7). Hodge v. Craig, 382 S.W.3d 

325, 335 (Tenn. 2012); Bean, 40 S.W.3d at 55. We deem this argument waived.

2. Dr. Nordquist

 Father then argues that the trial court erred in not excluding Dr. Nordquist 

altogether because his data was untrustworthy. Our Supreme Court has previously held 

that “a trial court must determine whether the evidence will substantially assist the trier of 

fact to determine a fact in issue and whether the facts and data underlying the evidence 

indicate a lack of trustworthiness.” McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 

(Tenn. 1997). To assist courts in determining the reliability of scientific evidence, the 

McDaniel court stated the following may be considered: (1) whether the evidence has 

been tested and how it was tested, (2) “whether the evidence has been subjected to peer 

review or publication,” (3) whether there is a known potential rate of error, (4) whether 

the scientific community generally accepts the evidence, and (5) whether the expert 

conducted the research at issue independent of the litigation. Id. 

Oddly, Father does not argue that Dr. Nordquist’s data is untrustworthy due to any 

of these five factors. Rather, he argues the data is untrustworthy because Dr. Nordquist 

belongs to a professional organization that has as members a cat and a man in prison. 

There is no dispute that this professional organization does not have a rigorous 

acceptance process. There is no evidence, however, that Dr. Nordquist relied on 

information from this professional organization in making his conclusions. In fact, there 

is no evidence in the record connecting this professional organization to the underlying 

data Dr. Nordquist relied upon in making his conclusions. Dr. Nordquist’s affiliation 

with this professional organization, by itself, does not indicate that the underlying data is

untrustworthy. This argument is without merit.

Father also argues that Dr. Nordquist should have been excluded from testifying 

because he did not update his expert disclosure prior to trial. Tennessee Rule of Civil 

Procedure 26.05(1) provides, in pertinent part, that “[a] party is under a duty seasonably 

to supplement the party’s response with respect to any question directly addressed to . . . 

the identity of each person expected to be called as an expert witness at trial, the subject 

matter on which the person is expected to testify, and the substance of that testimony.” 

Pursuant to Tenn. R. Civ. P. 37.03(1), a party is not permitted to use as evidence at trial 

any witness or information not disclosed in accordance with Rule 26.05. We review a 

trial court’s decision to impose sanctions under Tenn. R. Civ. P. 37 for an abuse of 

discretion. Amanns v. Grissom, 333 S.W.3d 90, 98 (Tenn. Ct. App. 2010). If reasonable 

minds could disagree as to the soundness of a discretionary decision, we ordinarily permit 

the decision to stand. Id. 

Here, a thorough review of the record reveals that Dr. Nordquist submitted an 

expert disclosure prior to his November 19, 2014 deposition. Following his deposition, 
- 26 -

Dr. Nordquist reviewed additional documents but failed to update his expert disclosure 

prior to testifying at trial in May 2015. The court allowed Dr. Nordquist to testify, but he

was not permitted to testify about anything he reviewed post-disclosure, except for 

rebuttal testimony. Reasonable minds could differ as to the soundness of the trial court’s 

decision to impose this sanction. We may not substitute our judgment for that of the trial 

court. Id. (citing Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)). We find no 

abuse of discretion in the trial court’s decision to impose this sanction. 

F. Sanctions with Regard to Dr. Workman

At trial, Father introduced into evidence the deposition of Dr. Workman. Mother 

objected and argued that Dr. Workman’s deposition should be stricken from the record 

because he testified about information he obtained from videotapes that were never 

disclosed to Mother despite discovery requests that Father produce such evidence. After 

hearing the parties’ arguments, the trial court admitted Dr. Workman’s deposition into 

evidence but ordered Father to pay the cost of Dr. Workman’s deposition, which totaled 

$5,000. Father argues on appeal that the trial court erred in imposing this sanction.

As discussed above, Tenn. R. Civ. P. 37.03 permits a trial court to exclude 

evidence when a party fails to supplement discovery requests in accordance with Rule 

26.05. This is not the only sanction available to the court. Rule 37.03(1) also permits 

trial courts “to requir[e] payment of reasonable expenses (including attorney fees) caused 

by the failure.” 

A careful and thorough review of the record shows that counsel for Mother crossexamined Dr. Workman during his deposition on March 10, 2017. Although Dr. 

Workman was noticed by Father for an audiovisual deposition, Dr. Workman refused to 

allow the deposition to be videotaped. In an attempt to discredit Dr. Hanaway, Dr. 

Workman testified that Dr. Hanaway had referred to Noah as “a little sh[**]” and 

described Mother as “an irrational b***h.” He admitted that he heard Dr. Hanaway make 

these statements on tapes secretly recorded by Father and Father’s counsel. Earlier in the 

litigation process, Mother issued discovery requesting that Father produce “all recorded 

conversations, whether they be recorded by audio or video or any other means 

whatsoever, or transcripts of conversations or statements by any person or entity 

regarding or related to any aspects of this lawsuit.” Father possessed these tapes for at 

least six months, but he failed to produce them for review by Mother’s counsel. 

In light of the foregoing, we conclude that the trial court did not abuse its 

discretion in imposing this sanction. 

 
- 27 -

G. Missing Witness Rule 

Father argues that the trial court erred in failing to apply the missing witness rule. 

We disagree. Pursuant to the missing witness rule, a party’s failure to call a witness 

“gives rise to a permissible inference that the missing witness’ testimony would have 

been unfavorable to the party who failed to call the witness.” Gentry v. Gentry, No. 

E2000-02714-COA-R3-CV, 2001 WL 839714, at *4 (Tenn. Ct. App. July 25, 2001)

(footnote omitted). Here, Father argues that Mother’s failure to call her family members, 

(Mr. Bodine, Mrs. Hazelwood, and Mr. Hazelwood) creates an inference that their 

testimony would have been adverse to her position.

Typically, the missing witness rule applies “in the context of a jury trial, where the 

judge instructs the jury as to how they may interpret the evidence or the absence of 

evidence.” Rittenberry v. Pennell, No. M2010-01244-COA-R3-CV, 2011 WL 1661770, 

at *10 (Tenn. Ct. App. Apr. 29, 2011). This rule does not create a presumption; it merely 

allows a “‘permissive inference.’” In re D.P.M., No. M2007-02741-COA-R3-PT, 2008 

WL 4693725, at *12 (Tenn. Ct. App. Oct. 23, 2008) (quoting State v. Francis, 669 

S.W.2d 85, 88 (Tenn. 1984)). The missing witness rule may be applied in the following 

circumstances:

(1) the party that failed to produce the witness . . . had it within their power 

to produce such witness . . . ; (2) the missing witness . . . was under the 

party’s control; (3) the witness . . . was not equally available to the other 

party; (4) the witness’s testimony . . . would not simply be cumulative; (5) a 

reasonable person in the party’s position would have produced the witness . 

. . if such witness . . . would have been helpful; and (6) the party has not 

given a reasonable excuse for failing to present the witness . . . .

In re Estate of Hamilton, No. M2009-01882-COA-R3-CV, 2011 WL 532296, at *5 

(Tenn. Ct. App. Feb. 14, 2011). 

The missing witness rule is inapplicable to this case. Father has failed to show 

how the missing witnesses were under Mother’s control and unavailable to him to 

subpoena to testify at trial. Moreover, the rule “applies to jury trials where the trial judge 

instructs the jury how to interpret the evidence or lack thereof.” Id. at *6. Father fails to 

explain how this rule applies to a bench trial like the one here. Thus, we conclude that 

the missing witness rule does not apply in this case.

H. Due Process

Father next argues that the trial court deprived him of procedural due process. The 

Fourteenth Amendment to the United States Constitution and Article 1, Section 8 of the 

Tennessee Constitution provide that the government may not deprive an individual of 
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life, liberty, or property without due process of law. Heyne v. Metro. Nashville Bd. of 

Pub. Educ., 380 S.W.3d 715, 731 (Tenn. 2012). A fundamental requirement of due 

process is “the opportunity to be heard ‘at a meaningful time and in a meaningful 

manner.’” Id. at 732 (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). When a 

court’s decision hinges on questions of fact, due process requires that litigants have the 

opportunity to cross-examine adverse witnesses. Goldberg v. Kelly, 397 U.S. 254, 269 

(1970). Here, Father argues that the trial court deprived him of due process by 

conducting the trial over the period of two years, restricting his cross-examination of Ms. 

Ross, prohibiting him from conducting Mother’s second deposition, refusing to allow 

Father to take a third deposition of Mother, and disallowing a deposition of Dr. Flens.

To support his argument, Father relies on Tenent v. Tenent, No. 02A01-9305-CV0017, 1994 WL 317531 (Tenn. Ct. App. July 6, 1994). Tenent involved a husband who 

committed perjury during the course of divorce proceedings. Tenent, 1994 WL 317531, 

at *1. Due to the husband’s perjury, the trial court prohibited him from “testifying, crossexamining witnesses, presenting witnesses in his own behalf, or participating in the trial 

in any manner.” Id. This court concluded that, although the husband’s perjury was 

“repulsive,” due process required that he be permitted to participate in the proceedings

and cross-examine witnesses. Id. at *4.

The facts in Tenent are distinguishable from those in this case. The trial court did 

limit Father’s cross-examination of Ms. Ross when he attempted to impeach her about the 

confession she testified he forced her to write. Specifically, the trial court prohibited 

Father from cross-examining Ms. Ross about whether the statements in the confession 

were true. The court based its decision on a finding that Father was harassing the witness 

by attempting to embarrass her. In regard to Dr. Flens, the record shows that the trial 

court disallowed the introduction of his deposition into evidence. This occurred after the 

trial court had already heard live testimony from Dr. Flens earlier in the trial. Thus, 

unlike in Tenent, Father was not completely barred from participating in the trial, from 

introducing evidence, or from cross-examining witnesses. This argument is without 

merit. 

In regard to Father’s assertion that the trial court violated his due process rights by 

conducting the trial over a period of two years, the record shows that Mother’s proof took 

approximately a day-and-a-half. The rest of the two-year period was consumed by 

Father’s proof and numerous motions. On several occasions, the trial court admonished

him for delaying the proceedings. Father is the architect of his own misfortune. 

Consequently, the finger of blame points solely at him, not the trial court. This argument

is without merit.

With respect to Father’s assertion that the trial court violated his due process rights 

by preventing him from conducting the second deposition of Mother and by refusing to 
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allow a third deposition of Mother, Father again fails to cite to any legal authority to 

support his argument. These arguments are waived.

In light of the foregoing, we conclude that the trial court did not deprive Father of 

procedural due process.

I. Unconstitutional Conditions on Father to See Noah

Father argues that the trial court erred in allowing Mother to choose a family 

therapist after Dr. Brown was removed from the case. He contends that the trial court, by 

allowing her to choose the family therapist, placed an unconstitutional condition on his 

ability to see his son because Father was denied “freedom of choice on medical 

providers.” Father fails, however, to cite to any constitutional provision providing him 

that right, and this court is aware of none. This argument is without merit. 

J. Name Change

Father argues that the trial court erred in denying his request to change Noah’s 

surname to “Justice.” When a child is born to an unmarried mother, as in this case, the 

child’s birth certificate “must reflect that the child’s surname is that of the mother unless 

both parents have requested otherwise.” Barabas v. Rogers, 868 S.W.2d 283, 287 (Tenn. 

Ct. App. 1993) (citing Tenn. Code Ann. § 68-3-305(b)(1)). The surname of a nonmarital 

child “is not changed following a paternity or legitimation proceeding unless the court 

orders that the name be changed.” Id. A court should not change a child’s surname 

unless it is in the best interest of the child. Halloran v. Kostka, 778 S.W.2d 454, 456 

(Tenn. Ct. App. 1988). As the party seeking to change the child’s surname, Father bears 

the burden of proving the change is in the child’s best interest. Barabas, 868 S.W.2d at 

287.

When determining whether changing a child’s surname is in the child’s best 

interest, courts consider the following criteria:

(1) the child’s preference, (2) the change’s potential effect on the child’s 

relationship with each parent[,] (3) the length of time the child has had its 

present surname, (4) the degree of community respect associated with the 

present and proposed surname, and (5) the difficulty, harassment, or 

embarrassment that the child may experience from bearing either its present 

or its proposed surname.

Id. 

A thorough examination of the record shows that Dr. Toor testified that Noah 

prefers his current surname, and Mother and the school personnel testified that his present 

surname is respected in the community. Moreover, at the time of trial, Noah had held his 
- 30 -

present surname for over eleven years. The record contains no proof regarding the 

second and fifth criteria. 

In light of the foregoing, we conclude that Father failed to prove it was in Noah’s 

best interest to change his surname. Thus, the trial court did not err in denying Father’s 

request to change Noah’s surname to “Justice.”

K. Parenting Plan

1. Primary Residential Parent

 Father asserts that the trial court erred in designating Mother as the primary 

residential parent and entering a residential parenting schedule that severely restricts his 

parenting time with Noah. Father contends that the evidence in the record does not 

support the findings of fact cited by the trial court when making its parenting plan 

determination.

When a court fashions a parenting plan, the best interest of the child is the 

paramount concern with the needs of the parents being secondary. Barnes, 2012 WL 

5266382, at *6. “[T]he goal is to place the child in the environment that best serves his 

or her needs.” Id. Tennessee Code Annotated section 36-6-401(a) provides, in pertinent 

part:

The general assembly recognizes the fundamental importance of the parentchild relationship to the welfare of the child, and the relationship between 

the child and each parent should be fostered unless inconsistent with the 

child’s best interests. The best interests of the child are served by a 

parenting arrangement that best maintains a child’s emotional growth, 

health and stability, and physical care.

A court tasked with fashioning a parenting plan should consider the factors set 

forth in Tenn. Code Ann. § 36-6-106(a). These factors are as follows:

(1) The strength, nature, and stability of the child’s relationship with each 

parent, including whether one (1) parent has performed the majority of 

parenting responsibilities relating to the daily needs of the child;

(2) Each parent’s or caregiver’s past and potential for future performance of 

parenting responsibilities, including the willingness and ability of each of 

the parents and caregivers to facilitate and encourage a close and continuing 

parent-child relationship between the child and both of the child’s parents, 

consistent with the best interest of the child. In determining the willingness 

of each of the parents and caregivers to facilitate and encourage a close and 
- 31 -

continuing parent-child relationship between the child and both of the 

child’s parents, the court shall consider the likelihood of each parent and 

caregiver to honor and facilitate court ordered parenting arrangements and 

rights, and the court shall further consider any history of either parent or 

any caregiver denying parenting time to either parent in violation of a court 

order;

(3) Refusal to attend a court ordered parent education seminar may be 

considered by the court as a lack of good faith effort in these proceedings;

(4) The disposition of each parent to provide the child with food, clothing, 

medical care, education and other necessary care;

(5) The degree to which a parent has been the primary caregiver, defined as 

the parent who has taken the greater responsibility for performing parental 

responsibilities;

(6) The love, affection, and emotional ties existing between each parent and 

the child;

(7) The emotional needs and developmental level of the child;

(8) The moral, physical, mental and emotional fitness of each parent as it 

relates to their ability to parent the child. . . ;

(9) The child’s interaction and interrelationships with siblings, other 

relatives and step-relatives, and mentors, as well as the child’s involvement 

with the child’s physical surroundings, school, or other significant 

activities;

(10) The importance of continuity in the child’s life and the length of time 

the child has lived in a stable, satisfactory environment;

(11) Evidence of physical or emotional abuse to the child, to the other 

parent or to any other person. The court shall, where appropriate, refer any 

issues of abuse to juvenile court for further proceedings;

(12) The character and behavior of any other person who resides in or 

frequents the home of a parent and such person’s interactions with the 

child;

(13) The reasonable preference of the child if twelve (12) years of age or 

older. . . ;
- 32 -

(14) Each parent’s employment schedule, and the court may make 

accommodations consistent with those schedules; and

(15) Any other factors deemed relevant by the court.

Tenn. Code Ann. § 36-6-106(a). Additionally, a court “shall order a custody arrangement 

that permits both parents to enjoy the maximum participation possible in the life of the 

child consistent with” the best interest of the child. Id.

In the present case, the trial court made an exhaustive review of the relevant 

factors and found they weighed in favor of naming Mother the primary residential parent. 

First, the trial court found that Mother “has provided for Noah’s needs throughout his 

life” while Father “has an estranged relationship with Noah.” See Tenn. Code Ann. § 36-

6-106(a)(1). The trial court also found that Mother has always been the primary 

caregiver. See Tenn. Code Ann. § 36-6-106(a)(5). Regarding Noah’s emotional and 

developmental needs, the court found that Mother had been the one to provide for those 

needs. See Tenn. Code Ann.§ 36-6-106(a)(7). The court considered each party’s ability 

to parent the child and found that Mother is “morally, physically, mentally and 

emotionally fit to parent the child,” but there are “serious concerns about the moral, 

mental and emotional fitness of [Father] to parent the child.” See Tenn. Code Ann. § 36-

6-106(a)(8). The court then found that Noah is in a stable environment that has been 

provided by Mother since his birth. See Tenn. Code Ann. § 36-6-106(a)(10). 

The evidence in the record supports these findings. Mother testified that she has 

been the one to care for Noah and provide for his needs on a daily basis. She has taken

him to most of his medical appointments as well as his therapy appointments.8 There can 

be no genuine dispute that Mother is and always has been Noah’s primary caregiver. 

Moreover, the record shows that Noah lives with Mother in a home she shares with Mr. 

Bodine, who gets along well with Noah. 

In addition to the factors already discussed, the trial court also considered two 

additional factors. Father focuses on these two factors to contend that the evidence in the 

record does not support the court’s findings. The court considered each parent’s

willingness to facilitate a close relationship with the other parent and found that Mother 

“has attempted numerous times to promote a positive relationship between Noah and 

[Father],” whereas “[t]here is no doubt, based on [Father’s] actions, he is not willing to 

encourage a close relationship between Noah and [Mother].” See Tenn. Code Ann. § 36-

6-106(a)(2). Father argues that the evidence in the record contradicts this finding 

because Mother sabotaged his relationship with Noah by alienating Noah from him. 

 

8 The maternal grandmother has sometimes taken Noah to his various medical and therapy appointments.
- 33 -

The trial court considered the testimony presented by Father regarding parental 

alienation and made findings of fact relating to that evidence. The court found that 

Mother had not persistently rejected or denigrated Father to the extent it reached the level 

of a parental alienation campaign because Mother voluntarily expanded Father’s 

parenting time during the pendency of the case. Moreover, the court found credible 

Mother’s statement that she did not influence Noah’s negative feelings towards Father. 

Finally, the court found that the estrangement between Father and Noah was due to the 

conduct of Father, not Mother.

Contrary to Father’s assertions, the evidence in the record supports these findings. 

Mother testified that she expanded Father’s parenting time both before and after litigation 

resumed in 2013. Most notably, she allowed Father several additional supervised visits 

without the court ordering her to do so. She wants Noah to have a close relationship with 

Father and has even encouraged Noah to call Father. The only evidence presented of 

alienating conduct by Mother was her discussing with Noah some of the information she 

disclosed to Father during discovery. 

The record shows alienating conduct by Father. For instance, despite Dr. Brown 

advising him to dismiss the separate lawsuits against Mother, he repeatedly refused to do 

so. Although he did eventually dismiss the lawsuits, he dismissed them without 

prejudice, meaning he could refile them at a later date. Finally, to prove Mother is guilty 

of parental alienation, Father relies on the testimony of Dr. Workman, Dr. Rappaport, and 

Dr. Flens. The trial court did not find any of this evidence credible, however, because 

these experts based their conclusions on information provided by Father, whom the court 

found not credible. 

 

The final factor considered by the trial court that Father contends was not 

supported by the evidence was whether there was evidence of physical or emotional 

abuse to the child, to the other parent or to anyone else. See Tenn. Code Ann. § 36-6-

106(a)(11). The court found that Father “has been abusive, both physically and 

psychologically to [Mother] as well as psychologically abusive to the child.” Evidence in

the record shows that Father has a history of physical and mental abuse towards Mother 

as well as Ms. Ross. Mother testified that he raped her and made her feel like she was 

untrustworthy. Although Ms. Ross did not expressly state Father raped her, she testified 

that she never felt she could say no when he wanted to engage in sexual relations because 

she did not want to anger him. Additionally, she testified that Father forced her to write a 

confession detailing perceived wrongful acts and relinquishing her rights to her unborn 

child. 

In regard to psychological abuse of Noah, the record shows that Father videotaped 

visits with Noah on numerous occasions using hidden cameras, interrogated Noah about 

Dr. Nordquist, and admonished Noah about his fears of Father kidnapping him after the 

issue had already been handled in family therapy with Dr. Hanaway. These acts by 
- 34 -

Father are disturbing, but the evidence we find most abhorrent is Dr. Nordquist’s 

testimony that Father threatened Noah that he would have Mother put in jail.

In light of the foregoing, we conclude that the evidence does not preponderate 

against the trial court’s findings. We affirm the trial court’s designation of Mother as the 

primary residential parent.

2. Residential schedule

Father next argues that the trial court erred in limiting his parenting time with 

Noah. Prior to fashioning a residential parenting schedule, courts must determine if 

either parent has been involved in any of the misconduct specified in Tenn. Code Ann. § 

36-6-406, which would necessitate that the court limit the parent’s residential parenting 

time. Armbrister, 414 S.W.3d at 696. The specified misconduct includes the following:

(1) A parent’s neglect or substantial nonperformance of parenting 

responsibilities;

(2) An emotional or physical impairment that interferes with the parent’s 

performance of parenting responsibilities as defined in § 36-6-402;

(3) An impairment resulting from drug, alcohol, or other substance abuse 

that interferes with the performance of parenting responsibilities;

(4) The absence or substantial impairment of emotional ties between the 

parent and the child;

(5) The abusive use of conflict by the parent that creates the danger of 

damage to the child’s psychological development;

(6) A parent has withheld from the other parent access to the child for a 

protracted period without good cause;

(7) A parent’s criminal convictions as they relate to such parent’s ability to 

parent or to the welfare of the child; or

(8) Such other factors or conduct as the court expressly finds adverse to the 

best interests of the child.

Tenn. Code Ann. § 36-6-406(d).
- 35 -

In the present case, the trial court determined that Father had engaged in 

misconduct that necessitated limiting his residential parenting time. The trial court made 

the following findings of fact:

1. The absence or substantial impairment of emotional ties between the 

parent and the child.

[Father] has been estranged from Noah for a number years and there is 

limit[ed] proof of emotional ties between [Father] and the child. [Father] 

has done little to address his issues in regard to the estrangement.

2. The abusive use of conflict by the parent that creates the danger of 

damage to the child’s psychological development.

[Father] continues to have a conflict with the minor child. This conflict has 

continued for a number of years. There were several instances of [Father’s] 

efforts to hyper-control Noah.

3. Such other factors or conduct as the court expressly finds adverse to the 

best interests of the child.

[T]his Court finds [Father] not credible. He has exhibited a pattern of 

manipulation, over-controlling and bullying in his life. This Court has 

serious concerns about his ability to parent since over the three years this 

Court has been assigned to this matter he continues this previouslyestablished pattern. These events include but are not limited to the 

following:

 [Father’s] prior abusive treatment of [Mother]

 [Father] forced his ex-wife to prepare a “confession” while she was 

pregnant with his child (who subsequently died at birth).

 [Father] sued Dr. Nordquist for malpractice.

 [Father] sued [Mother] seeking to have her removed as Circuit Court 

Clerk.

 [Father] sued [Mother] and her husband for an obscene gesture by 

[Mr. Bodine] in a parking lot after the child’s ballgame.

 [Father’s] associate, Mr. Rickman, served [Mother’s] mother during 

supervised parenting time at McDonald’s.

 [Father] secretly recorded visits at McDonald’s on numerous 

occasions.

 [Father] manipulated Dr. Brown to allow individual collateral 

therapy when such was not ordered by the Court.
- 36 -

 [Father] bullied and harassed Dr. Hanaway, through taking his 

deposition, until he removed himself from the case.

 Issues with Federal Court regarding [Father’s] truthfulness.

 [Father] threatened to sue therapist Sara Littlefield.

 After she brought this lawsuit regarding parenting time, [Father] 

threatened to “break [Mother] financially.”

 Two counselors advised [Father] to dismiss the lawsuits; he 

nonsuited both.

The evidence in the record shows that, for several years, Noah did not want to 

spend time alone with Father—even after three years of family therapy. As previously 

discussed, Father physically and mentally abused both Mother and Ms. Ross. Moreover, 

he has used the legal system to bully and intimidate people associated with this case. For 

instance, he has sued Mother, Mr. Bodine, and Dr. Nordquist. He reported the maternal 

grandmother to DCS for nudging Noah with her foot during a supervised visit at 

McDonald’s. When Dr. Hanaway refused to do something Father wanted him to do, 

Father threatened to depose him and subpoena him to court. After a thorough 

examination of the record, we conclude that the evidence does not preponderate against 

the trial court’s findings. As the trial court stated, Father has engaged in “a pattern of 

manipulation, over-controlling and bullying.” Thus, the trial court did not abuse its 

discretion in limiting Father’s residential parenting time with the child.

L. Child Support

Father contends that the trial court erred in setting his income for child support 

purposes at $17,785.83. Specifically, he asserts that the trial court erred in only 

considering one year of income rather than “three years of income, as is standard and 

appropriate” and in failing to take into account the self-employment taxes Father has to 

pay. He also asserts that the trial court should have required Mother to produce her tax 

returns rather than only requiring her to produce her W-2s. Father’s brief fails to make

any citation to the record. Moreover, he fails to cite to authority supporting his argument. 

Thus, he has waived this argument.

M. Dismissal of Contempt Charges

Father next asserts that the trial court erred in dismissing the petition and amended 

petition for criminal contempt he filed against Mother. Some history is necessary to 

understand Father’s position. After the trial court entered its September 13, 2013 order 

restricting Father’s parenting time to two hours of supervised visitation per week, he filed 

an interlocutory appeal in this court. The trial court stayed its September 13, 2013 order 

pending this court’s ruling on Father’s application for permission to appeal. 
- 37 -

In November 2013, this court ordered the parties to “immediately abide by 

whatever co-parenting plan was in effect prior to the entry of the September 13, 2013 

order” because the trial court’s order was stayed until we determined whether to grant 

Father’s application. Mother, however, continued to only permit Father to exercise 

parenting time with Noah as provided in the September 13, 2013 order. We ultimately 

denied Father’s application for permission to appeal. Thereafter, Father filed a petition

for criminal contempt and an amended petition for criminal contempt against Mother for 

repeatedly violating the 2010 parenting plan, which Father asserted this court had ordered 

the parties to follow.

The trial court entered an order on April 12, 2015, dismissing Father’s petition and 

amended petition for contempt after concluding that he had not proven beyond a 

reasonable doubt that Mother willfully violated this court’s order. The court based this 

conclusion on its finding that there was an ambiguity on the face of this court’s order. 

Specifically, there was confusion as to which parenting plan “was in effect” prior to the 

September 13, 2013 order—the 2006 plan or the 2010 plan.

On appeal, Father argues that his petition and amended petition for criminal 

contempt should not have been dismissed because there is no ambiguity in this court’s 

order: the 2010 plan was clearly the plan in effect because that is the plan the parties 

followed prior to the September 13, 2013 order. In response, Mother asserts that Father 

failed to prove beyond a reasonable doubt that she was guilty of criminal contempt and 

that the double jeopardy clause of the Fifth Amendment to the United States Constitution 

precludes this court from reviewing the issue. We agree with Mother.

With respect to criminal contempt and the double jeopardy clause, this court 

recently stated, in pertinent part, as follows:

“Although contempt proceedings are traditionally classified as ‘civil’ or 

‘criminal,’ in point of fact, contempt proceedings are neither wholly civil 

nor criminal in nature and may partake of the characteristics of 

both.” Baker v. State, 417 S.W.3d 428, 435 (Tenn. 2013). Because criminal 

contempt has both civil and criminal elements, defendants in criminal 

contempt proceedings are afforded some, but not all, of the same 

constitutional protections as criminal defendants. Id. at 436. Our Supreme 

Court has held that the double jeopardy clause of the Fifth Amendment to 

the U.S. Constitution is one of the protections afforded to defendants in 

criminal contempt proceedings. Ahern v. Ahern, 15 S.W.3d 73, 80 (Tenn. 

2000). The double jeopardy clause “protects an accused against a second 

prosecution for the same offense after an acquittal, and multiple 

punishments for the same offense.” Id. “Perhaps the most fundamental rule 

in the history of double jeopardy jurisprudence has been that ‘[a] verdict of 

acquittal . . . could not be reviewed, on error or otherwise, without putting 
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(a defendant) twice in jeopardy, and thereby violating the 

Constitution.’” U.S. v. Martin Linen Supply Co., 430 U.S. 564, 571 

(1977) (quoting United States v. Ball, 163 U.S. 662, 671 

(1896)); see Cansler v. Cansler, No. E2008-01125-COA-R3-CV, 2010 WL 

342652, at *7 (Tenn. Ct. App. Feb. 1, 2010).

Covarrubias v. Baker, No. E2016-02316-COA-R3-CV, 2017 WL 6276230, at *2 (Tenn. 

Ct. App. Dec. 11, 2017). The Covarrubias court concluded that reviewing the trial 

court’s decision to dismiss the wife’s motion for criminal contempt would violate the 

double jeopardy clause because the dismissal functioned as an acquittal. Id. 

Here, the trial court held a hearing on Father’s petition and amended petition for 

criminal contempt where both he and Mother presented evidence. After hearing all of the 

evidence, the trial court concluded that Father failed to prove beyond a reasonable doubt 

that Mother was guilty of criminal contempt and dismissed the petition and amended 

petition for criminal contempt. In light of our holding in Covarrubias, we conclude that 

the trial court’s dismissal “functioned as an acquittal for the purposes of double 

jeopardy.” Id. Thus, we cannot review the trial court’s dismissal because to do so would 

violate the Constitution.

N. Fifth Amendment Privilege

While the criminal contempt charges were pending, Father sought to take a second 

deposition of Mother. During the deposition, she repeatedly invoked her privilege 

against self-incrimination. Father asserts that she waived this privilege, however, by 

voluntarily disclosing incriminating facts. This issue is related to the previous section. 

Because we determined that we cannot review the trial court’s dismissal of Father’s 

petition and amended petition for criminal contempt, this issue is moot.

O. Wrongful Injunction

Father argues that the trial court erred in not addressing the September 13, 2013 

order limiting Father’s parenting time to two hours of supervised visitation per week. 

Specifically, Father argues that he proved that the injunction was wrongfully issued so 

the trial court should have conducted proceedings to determine the losses caused by the 

wrongfully issued injunction and execution on the bond. Father fails to cite to where in 

the record he proved that the injunction was wrongfully issued. This issue is waived.
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P. Attorney Fees 

1. At Trial

At the conclusion of trial on March 30, 2017, the trial court ruled from the bench 

that Father would pay all of Mother’s attorney fees incurred as a result of her petition to 

establish paternity. In its April 11, 2017 order, the trial court reiterated this ruling and 

awarded Mother $376,638.90 in attorney fees. On appeal, Father asserts that the trial 

court erred in awarding Mother her attorney fees without allowing him to cross-examine 

Mother’s witnesses or present proof on that issue.

In Wilson Management Co. v. Star Distributors Co., 745 S.W.2d 870, 873 (Tenn. 

1988), the Tennessee Supreme Court stated:

[W]e agree with Trice [v. Hewgley, 381 S.W.2d 589 (Tenn. Ct. App. 1964)] 

that a trial judge may fix the fees of lawyers in causes pending or which 

have been determined by the court, with or without expert testimony of 

lawyers and with or without a prima facie showing by plaintiffs of what a 

reasonable fee would be. Obviously, the burden of proof on the question of 

what is a reasonable fee in any case is upon the plaintiff and plaintiff should 

be in a position to tender such proof. However, if a trial judge is prepared 

to fix a reasonable fee based upon the appropriate guidelines without first 

hearing plaintiff’s proof, defendant must be accorded full opportunity to 

cross examine plaintiff’s witness and present evidence on that issue.

In the present case, a thorough review of the record reveals that the trial court 

based its decision on affidavits submitted by Mother’s attorneys stating she incurred 

attorney fees in the amount of $376,638.90.

9

 Obviously, the trial judge felt he did not 

need opinions of other lawyers to make a proper award of attorney fees. At such point, 

“it was incumbent upon [Father’s] lawyer to request a hearing if dissatisfied with the 

award, or convince the appellate courts that he was denied the opportunity to do so 

through no fault of his own.” Kahn v. Kahn, 756 S.W.2d 685, 697 (Tenn. 1988). 

On March 31, 2017, Father filed an objection to the award of Mother’s attorney 

fees and requested a hearing on the matter. He amended his objection on April 10, 2017. 

Thereafter, the trial court advised Father that a hearing was set for April 28, 2017, on all 

pending motions, including attorney fees. Instead of waiting for the attorney fees issue to 

be heard on April 28, 2017, however, Father filed his notice of appeal on April 17, 2017, 

and he did not appear at the April 28 hearing. 

 

9 Martha Meares’s fee totaled $232,847.50. David Valone’s fee totaled $143,791.40.
- 40 -

In light of these facts, we conclude that Father was not denied an opportunity to 

cross-examine Mother’s witnesses or present evidence regarding the award of attorney 

fees. We affirm the award of attorney fees. 

 

2. On Appeal

Mother requests that she be awarded her attorney fees on appeal. Litigants are 

generally required to pay their own attorney fees unless a statute or contract provision 

provides otherwise. John Kohl & Co. P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 534 

(Tenn. 1998). In custody cases, Tenn. Code Ann. § 36-5-103(c) provides a basis for an 

award of attorney fees at trial and on appeal. When this case was initiated, Tenn. Code 

Ann. § 36-5-103(c)10 provided as follows:

The plaintiff spouse may recover from the defendant spouse, and the spouse 

or other person to whom the custody of the child, or children, is awarded 

may recover from the other spouse reasonable attorney fees incurred in 

enforcing any decree for alimony and/or child support, or in regard to any 

suit or action concerning the adjudication of the custody or the change of 

custody of any child, or children, of the parties, both upon the original 

divorce hearing and at any subsequent hearing, which fees may be fixed 

and allowed by the court, before whom such action or proceeding is 

pending, in the discretion of such court.

A decision to award attorney fees on appeal, however, is within the discretion of the 

appellate court. Paschedag v. Paschedag, No. M2016-00864-COA-R3-CV, 2017 WL

2365014, at *5 (Tenn. Ct. App. May 31, 2017). Mother has prevailed on every issue on 

appeal, and Father’s brief is largely a compilation of conclusory statements with little 

actual argument or citation to authority. As such, we exercise our discretion to award 

Mother her attorney fees incurred on appeal.

 

10 Tennessee Code Annotated section 36-5-103(c) was amended in July 2018 to provide the following:

A prevailing party may recover reasonable attorney’s fees, which may be fixed and 

allowed in the court’s discretion, from the non-prevailing party in any criminal or civil 

contempt action or other proceeding to enforce, alter, change, or modify any decree of 

alimony, child support, or provision of a permanent parenting plan order, or in any suit or 

action concerning the adjudication of the custody or change of custody of any children, 

both upon the original divorce hearing and at any subsequent hearing.
- 41 -

IV. CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded for a 

determination of Mother’s attorney fees incurred on appeal. Costs of appeal are assessed 

against the appellant, Loring E. Justice, for which execution may issue if necessary.

________________________________

 ANDY D. BENNETT, JUDGE