1 Jacks on McCaid Mason 

### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE Februar y 13, 2002 Se ssion
JAMIE LYNN FISH MASON v. CHAR LES 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 Tria l Court er red 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 Cha

ncery Court Affi rmed; C ause Remanded
H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS and D. M ICHAEL S WINEY , JJ., joined. Denise Terry Stapleton, Morristown, Tennessee, for the A ppellant, Charles E. Mason, Jr.
Jill R. Tally, Dandridge, Tennessee, and James R. Scroggins, Jeffe rson 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 r estate: whether the Trial Court erred in failing to grant Mr. Mason standard visitation with his minor child. The parties were married on Februar y 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 in appropr iate mar ital cond uct, more specifically, that he was guilty of verbal and physical abuse. Ms. Mason wa s seeking , inter-2-

alia , an absolute divorce, exclusive custody and control of the minor child, and c hild support. Mr. Mason filed an Answer and Counter-Complaint alleging that Ms. Ma son was gu

ilty of ina ppropria te marital conduct and he, too, was seeking exclusive custody of the minor child.
An Agreed Order was entere d into by the parties on April 24, 2001, pending the final hearing, whereby Ms. Mason was designated the primary residential parent fo r t he minor child and Mr. Mason was gra

nted shar ed pare nti ng time with the child each Saturday from 1:00 P.M. until 7:00 P.M., and o n each W

ednesda y from 1:0 0 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 be en an illu sive conc ept to some exte nt in this trial. I know in my mind there’s been a lot of lie s that hav e been to ld 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 M s. Mason on more than one occasion; I believehe 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 drinkin g 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 b e va gue, but he didn’t r emember really g oing 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 what

ever it is, in Pigeon Forge.
I can tell you, Mr. Mason, tha t as a father and as a grandfather I’m going to protec t your right to see J ackson, but it does n’t appe ar as if anybody dow n here wants to hear this case and I assume if the re’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 withJackson. If they p

rove to my

satisfaction that you’re ever under the influence around Jackson I’ll take ca re of it.-3-

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 th

e Agree d Order , which is every Saturday and Wednesd ay from 1 :00 P.M. unti l 7:0 0 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 we ekend fr om 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. Onc e the chi ld reac hes thirty -six months, Mr. Mason

will contin

ue the af orement ioned visitation plust hr ee weeks in the summer. The Order further sets forth holiday visitation. Mr. Mason argues that while he has had prob lems in the past with drug and alcohol abuse, violentbehavior when intoxicated, and immaturity, these are all areas he has improved upon in the past few month s. Mr. Mas on contends that he has compl eted a dr

ug and alc ohol reha

bilita t ion prog ram 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. Mas on also has problems with drug and alcohol abuse, immaturity, and anger management. Mr. Mason argue s 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 har m. Final ly, Mr. Mason asserts that Jackson is subject to harm by living with his mother and maternal grandfa ther, 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. Ma son 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 appropr iate parent to have custody and that the record supports the visitation schedule as set forth in the Final Judgment.
Custo d y and visita

tion dete rmination s often hi nge on sub tle fact ors, incl uding the p arents' demeanor and credibility during the divor ce proc eedings t

hemselve s. Accor

dingly, ap pellate courts are reluctant to second-guess a trial court's decisions. Trial courts must be able to exercise broad discretion in these ma

tters, bu t they still m

ust base t heir dec isi ons on the pro of and upon the appropriate application of the applicable principles of la w. 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 f

indings of fact de novo upon the record of the proceedings below, with a presumption of correctness “unless the prepondera nce of the ev

idence i s otherwi se.” Te

nn. R. App. P. 13(d); see also Hass v. Knighton , 676 S.W.2d 554 (Tenn. 1 984). The re is no pr esumption

of corr ectness 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 a s well as our legislature have rec ognized that non-custodial parents have a fundamental right to

visit their childre n. Howev er, that

right is n ot absolut

e. The c ourts may

restric t, suspend, or termin ate vis itat ion ri gh ts upon the presentation of clear and definite evidenc e that-4-

permitting continued visitation will jeopardize the child physically or emotionally. T.C.A. 36-6-301 (2000); Suttles v. Suttles , 748 S.W.2d 42 7, 429 (Te nn.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.199 6); Weaver v. W eaver , 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 e nvironment 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 dete rmining 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 inq uiry is factua lly driven a

nd requir es the courts to ca

refully w eigh nume

rous cons ideratio ns, includ ing those identified in T.C.A. 36-6-106 (2001). Nichols v

. N ichols , 792 S.W.2 d 713, 716 (Tenn.199 0); Rogero v. Pitt , 759 S.W.2 d 109, 112 (Tenn.198 8); Holloway v. Bradley , 230 S.W.2d 1003, 10 06 (Tenn.1950).
Trial courts are nor

mally in the

best position to judge the credibility of the witnesses since they have seen and heard the witnesses testify. Massenga le v. Massengale , 915 S.W.2d 818, 819 (Tenn. Ct. App. 1995). Thus, a trial court's determinationof credibility is entitled to great weight in this cour

t. Town of Alamo v. Forcum-James Co. , 327 S.W.2 d 47, 49 (T enn.1959 ); Koch v. Koch , 874 S.W.2d 571, 577 (Tenn.Ct.App.1993). In the case sub judice , Mr. and M s. Maso n each presented evidence that the other abused alcohol and drugs, be ha ved i n an immature and inapprop riate manner, and

has trouble controlling anger. Ms. Mason accused Mr. Mason of having a history of domestic violence toward her, wh ich Mr. Mason denied. Each party denied the allegations made by the other. TheTrial Court, upo n hearin g the testimony put fo rth by both

parties, chose to believ e Ms. Mas on rather than Mr. Mason. Based upon the record be fore this Court, we find that the evidence does not preponderate a gainst the Trial Court’s determinations.
The judgmentof the Trial Court is af firmed a nd the ca use rema nded for collecti on of cost s below which are, as are costs of appea l, adjudged against the Appellant, Charles E. Mason, Jr., and his surety, for which execution may issue if necessary.

_________________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE