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 Jackson McCaid Mason

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

February 13, 2002 Session

JAMIE LYNN FISH MASON v. CHARLES E. MASON, Jr.

 Appeal from the Chancery Court for Cocke County

No. 01-011 Thomas J. Seeley, Jr., Judge, Sitting by Designation

FILED JUNE 7, 2002

No. E2001-02208-COA-R3-CV

This appeal from the Chancery Court of Cocke County questions whether the Trial Court erred in

failing to grant Mr. Mason standard visitation with his minor son. We affirm the judgment of the

Trial Court. 

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

Remanded

HOUSTON M.GODDARD, P.J., delivered the opinion of the court, in which HERSCHEL P.FRANKS and

D. MICHAEL SWINEY, JJ., joined.

Denise Terry Stapleton, Morristown, Tennessee, for the Appellant, Charles E. Mason, Jr.

Jill R. Tally, Dandridge, Tennessee, and James R. Scroggins, Jefferson City, Tennessee for the

Appellee, Jamie Fish Mason.

OPINION

This is an appeal from a divorce between Jamie Lynn Fish Mason, the Appellee, and Charles

E. Mason, Jr., the Appellant. Mr. Mason appeals the decision of the Cocke County Chancery Court

and presents for our review one issue which we restate: whether the Trial Court erred in failing to

grant Mr. Mason standard visitation with his minor child.

The parties were married on February 26, 2000 and one child was born of the marriage on

October 21, 2000.1

 Both Mr. and Ms. Mason have asserted that this was a stormy relationship prior

to the marriage and continued to be so after the marriage. Ms. Mason filed a Complaint for Divorce

on March 2, 2001 wherein she alleged that Mr. Mason was guilty of inappropriate marital conduct,

more specifically, that he was guilty of verbal and physical abuse. Ms. Mason was seeking, inter
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alia, an absolute divorce, exclusive custody and control of the minor child, and child support. Mr.

Mason filed an Answer and Counter-Complaint alleging that Ms. Mason was guilty of inappropriate

marital conduct and he, too, was seeking exclusive custody of the minor child.

An Agreed Order was entered into by the parties on April 24, 2001, pending the final hearing,

whereby Ms. Mason was designated the primary residential parent for the minor child and Mr.

Mason was granted shared parenting time with the child each Saturday from 1:00 P.M. until 7:00

P.M., and on each Wednesday from 1:00 P.M. until 7:00 P.M.

This matter was heard before the Trial Court on July 27, 2001. Following testimony by the

parties and several witnesses, the Trial Court stated in its Memorandum Opinion, the following:

The truth has kind of been an illusive concept to some extent in this

trial. I know in my mind there’s been a lot of lies that have been told

from that witness stand. I don’t want to come down too much on

either one of you. I think there have been other people lied; I don’t

believe Mr. Burchette for one minute; he got on the stand and lied to

protect his friend, Mr. Mason.

I believe Mr. Mason has struck Ms. Mason on more than one

occasion; I believe he pulled that chunk of her hair out of her, and I

don’t have much use for any man that hits a woman and I think you

did, Mr. Mason. I think you may have done as a product of your

drinking, and I still believe you have a drinking problem.

. . . 

I mentioned Mr. Mason’s drinking. You know that story about what

happened at the Outback and how he got there and I don’t know if he

was just trying to be vague, but he didn’t remember really going to

the Outback and he didn’t know who drove to the Outback. I guess

then he remembered going to the Outback but he wasn’t sure how he

got there.

I believe that he did get thrown out of TGI Friday’s, or whatever it

is, in Pigeon Forge.

I can tell you, Mr. Mason, that as a father and as a grandfather I’m

going to protect your right to see Jackson, but it doesn’t appear as if

anybody down here wants to hear this case and I assume if there’s

problems in the future I’ll come down and hear it and if your drinking

continues to be a problem you run the risk of losing substantial time

with Jackson. If they prove to my satisfaction that you’re ever under

the influence around Jackson I’ll take care of it. 
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With respect to custody and visitation, the Trial Court designated Ms. Mason the primary residential

parent and granted Mr. Mason visitation as set forth in the Agreed Order, which is every Saturday

and Wednesday from 1:00 P.M. until 7:00 P.M. Once the minor child reaches the age of sixteen

months, visitation increases to Friday evening at 6:00 P.M. until Saturday evening at 6:00 P.M. each

week in addition to the Wednesday evening visitation. When the child reaches the age of twentyfour months Mr. Mason will have every other weekend from Friday at 6:00 P.M. until Sunday at

6:00 P.M. and each Wednesday from 1:00 P.M. until 7:00 P.M. Once the child reaches thirty-six

months, Mr. Mason will continue the aforementioned visitation plus three weeks in the summer. The

Order further sets forth holiday visitation.

Mr. Mason argues that while he has had problems in the past with drug and alcohol abuse,

violent behavior when intoxicated, and immaturity, these are all areas he has improved upon in the

past few months. Mr. Mason contends that he has completed a drug and alcohol rehabilitation

program and that he has passed several drug tests. Additionally, he will be receiving his college

degree within a few months. He further asserts that Ms. Mason also has problems with drug and

alcohol abuse, immaturity, and anger management. Mr. Mason argues that comparatively speaking,

Ms. Mason is no more fit to raise the minor child than he is, and that there is no proof that allowing

Mr. Mason to spend more time with his son will likely result in any harm. Finally, Mr. Mason

asserts that Jackson is subject to harm by living with his mother and maternal grandfather, on a

tomato farm that uses “toxic chemicals” in the production of tomatoes. Further, because the farm

is situated along the Pigeon River, there is concern about the exposure of Jackson to the “dioxins.”

Mr. Mason argues that that is more reason to increase the amount of time the minor child spends

with him.

Ms. Mason asserts that the Trial Court did not err in determining that she is the appropriate

parent to have custody and that the record supports the visitation schedule as set forth in the Final

Judgment.

Custody and visitation determinations often hinge on subtle factors, including the parents'

demeanor and credibility during the divorce proceedings themselves. Accordingly, appellate courts

are reluctant to second-guess a trial court's decisions. Trial courts must be able to exercise broad

discretion in these matters, but they still must base their decisions on the proof and upon the

appropriate application of the applicable principles of law. Gaskill v. Gaskill, 936 S.W.2d 626, at

631 (Tenn. Ct. App. 1996); D v. K, 917 S.W.2d 682, 685 (Tenn.Ct.App.1995). Thus, we review the

Trial Court’s findings of fact de novo upon the record of the proceedings below, with a presumption

of correctness “unless the preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d); see

also Hass v. Knighton, 676 S.W.2d 554 (Tenn. 1984). There is no presumption of correctness with

regard to the trial court’s conclusions of law, and those conclusions are reviewed de novo. Jahn v.

Jahn, 932 S.W.2d 939 (Tenn. Ct. App. 1996). 

Our courts as well as our legislature have recognized that non-custodial parents have a

fundamental right to visit their children. However, that right is not absolute. The courts may restrict,

suspend, or terminate visitation rights upon the presentation of clear and definite evidence that
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permitting continued visitation will jeopardize the child physically or emotionally. T.C.A. 36-6-301

(2000); Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn.1988); Helson v. Cyrus, 989 S.W.2d 704, 707

(Tenn.Ct.App.1998); Jahn v. Jahn, 932 S.W.2d 939, 941 (Tenn.Ct.App.1996); Weaver v. Weaver,

261 S.W.2d 145, 148 (Tenn.1953). 

The goal of custody and visitation decisions is to promote the child's best interests by placing

him or her in an environment that will best serve his or her physical or emotional needs. Luke v.

Luke, 651 S.W.2d 219, 221 (Tenn.1983). No hard and fast rules exist for determining which custody

and visitation arrangement will serve a child's needs best. Taylor v. Taylor, 849 S.W.2d 319, at 327

(Tenn.1993); Dantzler v. Dantzler, 665 S.W.2d 385, 387 (Tenn.Ct.App.1983). The inquiry is

factually driven and requires the courts to carefully weigh numerous considerations, including those

identified in T.C.A. 36-6-106 (2001). Nichols v.Nichols, 792 S.W.2d 713, 716 (Tenn.1990); Rogero

v. Pitt, 759 S.W.2d 109, 112 (Tenn.1988); Holloway v. Bradley, 230 S.W.2d 1003, 1006

(Tenn.1950). 

Trial courts are normally in the best position to judge the credibility of the witnesses since

they have seen and heard the witnesses testify. Massengale v. Massengale, 915 S.W.2d 818, 819

(Tenn. Ct. App. 1995). Thus, a trial court's determination of credibility is entitled to great weight

in this court. Town of Alamo v. Forcum-James Co., 327 S.W.2d 47, 49 (Tenn.1959); Koch v. Koch,

874 S.W.2d 571, 577 (Tenn.Ct.App.1993). In the case sub judice, Mr. and Ms. Mason each

presented evidence that the other abused alcohol and drugs, behaved in an immature and

inappropriate manner, and has trouble controlling anger. Ms. Mason accused Mr. Mason of having

a history of domestic violence toward her, which Mr. Mason denied. Each party denied the

allegations made by the other. The Trial Court, upon hearing the testimony put forth by both parties,

chose to believe Ms. Mason rather than Mr. Mason. Based upon the record before this Court, we

find that the evidence does not preponderate against the Trial Court’s determinations. 

The judgment of the Trial Court is affirmed and the cause remanded for collection of costs

below which are, as are costs of appeal, adjudged against the Appellant, Charles E. Mason, Jr., and

his surety, for which execution may issue if necessary.

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HOUSTON M. GODDARD, PRESIDING JUDGE