### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
JEREMY FOSTER WILSON v. JENNIFER ELAINE PARIS WILSON (LADD)
Direct Appeal from the General Sessions Court for Warren County

No. 6391 Larry G. Ross, Judge

No. M1999-01274-COA-R3-CV - Decided June 20, 2000

A divorce decree granted both parents joint custody of th

eir young child. When the chil

d reached school age, the mother and father were living in different towns, and they

both filed petitions to be granted pri mary cu stody. The tr ial court grant

ed primary

custody to the

father, with rea

sonable visitation for the m

other. We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court Affirmed and Remanded

C ANTRELL , P.J., M.S., delivered the opinion of the court, in which C AIN and C OTTRELL , JJ. joined. Timothy S. Priest, Winchester, Tennessee, for the appellant, Jennifer Elaine Paris Wilson (Ladd). Susan N. Marttala, Winchester, Tennessee, for the appellee, Jeremy Foster Wilson.
OPINION

I.

Jus t in Foster Wilson was born on September 14, 1994. His parents, Jeremy and Jennifer Wilson divorced fifteen months later. The div orce decree, filed on December 11, 1995 in the GeneralSessions Court for Wa rren County, granted the di vorce to Jeremy Wilson on the ground of inappropriate

marital conduct.

Both parties were awa

rded joint custody of Justin, with physical custody to alternate on a we ekly basis. No child support was ordered. The joint custody arrangement

worked fairly well, although for most of the time, the parties found

it advantageou

s to alt erna te c ust ody e very t wo o r th ree d ays r ath er t han week ly.

After the divorce, Jeremy Wilson continued to live in

the log home

he and his father

had built
on land adjoining his parents’ property in McMinnville. Jenn ifer mov ed into an apartme nt in McMinnville, andthen purchased a house near her parents’ home in the Centertown commun

ity in Warren Coun ty. She subsequently sold the Centertown house and moved to Tullahoma. On-2-

September

12, 1998, Jennifer married Elliott Ladd. Mr. Ladd’s 16-y ear-old son and 8- year -old daughter from a p r evious marriage lived with him in a 4 bedroom house in Tullahoma. Jennifer moved into the house at the time of her marriage.

As Justin ap proached th e age of five, t he questio n arose as to whether he s hould go to school in McMinnville or Tullahoma. On March 3, 1999, Jennifer Ladd filed a pet iti on t o mo dif y cus tod y, in which she assert

ed that it was in Justin’ s manifest best in terest thatshe be granted absolute custody and that Justin be enrolled in a school near her. On April 5, 1999, Jeremy Wilson filed an answer and counter-petition for custody.

After a full evid

entiary hea

ring on August 11, 1999, the trial court granted custody to the father, subject to reasonable visitation by the mother. The mother wa s also ordered to pay child support. This appeal followed.

II

. The sole issue raised onappeal is whether the trial court erred in granting primary custody of Justin to his father. The t rial judge admitted that it was difficult to decide between the competing claims of the parents, but he ultimately found that it was in the child’s best i

nterest to be plac

ed in his father’s custody. Our review of this finding of fact is de novo upon the r ecord of thetrial court, accompani edby a presump tion of correctn

ess, unless the pre

ponderance of t

he evidence is oth

erwise

. Rule 13(d), Tenn.

R. App. P. Fortunately

for our review, there is

very little d

ispute as to the per

tinent facts, but o

nly as to the relative weigh

t those facts

were entitled to in the court’s best interest analysis. Tenn. Code. Ann. § 36-6-106 sets out th

e factors for th

e court to consider in deter

mining the best inte

rest of a child in matters of custody

: (1) The love, affection a

nd emo tional ties existing between the parents and child; (2) The disposition of th e parents to provi

d e the child with food, clot hing, medical care, education and other necessary care and the degr ee to which a

parent has been the primary caregiver; (3) The importanceof

continuity in the child's life and the length of time the child has lived in a

stable, satisfac

tory enviro

nment; (4) The stability

of the family

unit of the parent

s; (5) The mental an

d physical he

alth of the paren

ts; (6) The home, school and community record of the child; (7) The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon

request. The preferences of older children should normally be given greater w eight than those of you

ng er children;-3- (8) Evidence of physical or emotional abuse to the child, to the other parent or to any othe

r person; (9) 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. (10) Each parent's pas t and pot ential for future performance of parenting respons ibilities, including the will ingness and abil

ity of each

of the parents

t o facilitate andencourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child.

The trial court applie

d the relevant sta

tutory fac tors in a conscien

tious ma nner, and conclud ed that some of them favored Mr. Wilson, some favored Mrs. Ladd, and some were equally favorable to both parents. The court found, for example, that the ties of love and affection between mother and child were equal in st

rength to those between fa ther and child. Th

ere can be no dou

bt that both mother and father are fit pa

rent s, and that they both continue to play an important role in Justin’s upbringing.

The mothe r argues that she has been the primary car egiver, because she was the one who involved Justin in social and church-related activities, and the o ne who t ook Ju stin to the doctor when he was sick. The tr

ial judge noted th

at the disposition of

bothparents to provide the child with food, clothing and medical care was about eq ual, bu t conceded that if he had to designate the one who had been the primary caregiver, she w ould get the nod, becaus e “if nothing else, just for the times that she took the child to the doctor. Or maybe, that is just a woman thing as opposed to a man thing. Maybe the women just do that sort of thing.”

The appellant argues that

this remark amounts to reversible error by the trial court, be

cause it shows that the judge did not give proper weight to the second factor p rov ided by the statutory scheme for determining child custody. While the judge perhaps made an unfortunate choice of words, we do not believe t hat it amounts to rev

ersible error. Insofar as factor two favored one of the parents over t he other, he foun d that it favored th

e appellant, but he

also found that othe

r facto r s weighed heavily in favor of the father.

The trial court deter

mined that Justin

would be be tter off in his fat her’s custody

than his mother’s because of the greater continuity and stability offered by Mr. Wilson. The proof showed that Mr. Wilson has workedfor the City of McMinnville for at least five years, and that he continues to live in the same home that the parties shared when Justin was born. Jeremy Wilson’s parents liv

e next door, and his

mother testified that she is willing and able to help him with Justin. The child’s maternal grandmother and great-grandparents and other relatives also live in the McMinnville area. Justin’s maternal grandmother sees him at least once a week by agreement with the paternal g randmother and with her former son-in-law.

Mrs. Ladd notes that Mr. Wilson’s work hours are 7:30 a.m. to 3:30 p.m. and that in order to be at work on time, he will have to drop Justin off at school more tha

n half an hour bef

ore the bell-4-

rings (there is

a program at the school for children who arrive early ). The maternal g

randmother will have to pick

Justin up at school when it lets out at 2:30, and keep him in her home until Mr. Wilson gets home from work.

The appellant states that Mr. Ladd earns a sufficient inco

me to enable her to stay home and take care of Justin full-time, and also th at he is capable and willing to assist her in raising Justin. She thus argues that she can be a full-time parent to Justin, while Mr. Wilson cannot. She also claims that Justin has become very attached to his stepbrother and stepsister.

The record does not contradict the appellant’s assertion s, but it includes facts that add an
e lement of uncertainty to her situation. She and Mr. Ladd had both previously worked at th e Bridgestone

plant near McMinnville. They had both suffered injuries on the job, and are curre

ntly involved in workers compensation lawsuits. The appellant has had to undergo carpal tunnel surgery on b oth han ds a s we ll a s sh oul der s urge ry.
Mr. Ladd suffered a back

injury, and h

is doctors placed

lifting restric

tions on him

that made it impossible for him to resume work at Bridgestone. He subsequently beg an an a sphalt s ealing business, with all labor being done by himsel f and tw o employees. As we indicated above, the business has been success ful enough to enable the appellant to stay home and raise the children. But Mr. Ladd had only been in business for a short time when the hearing was conducted, and the lon gterm prospects of the business, and thus of the appellant’s plan to be a stay -at-home mom, rem

ain uncertain.
Further, while we have no reason to doubt the strength of their bond, we note that appellant hadbeen m arried to M r. Ladd for less than a year a t the time of the custody hearing, and that Mr. Ladd has been married three times previously. It is sig nificant that no family member s of Mr. or Mrs. Ladd appear

to reside in Tullah

oma, so if problems

develop for either of them, assistance might be hard to find.

Of course, every

situation carrie

s w ith it some de gree of risk. For example, Mr. Wilson’s mother is diabetic, so his r

elia nce upon her for Jus tin ’s a fte r-s cho ol c are m ight be af fect ed b y a worsening of her

condition. On balance, however, we cannot say that the evidence preponderates against the trial court’s finding that Mr. Wilson can offer more continuity and stability to his son than can Mrs. Ladd, and therefore that it is in Justin’s best interest that custody be place d in his father.

III.

The judgment of the trial court is affirmed. Remand this cause to

the General Sessions Court of Warren County

for further proceedings consistent with this opinion. Tax the costs on appeal to the appellant, Jennifer Elaine Wilson (Ladd).