### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE JULY 8, 2003 Session RICKY LEE JENKINS v. HEATHER MICHEL E JOHNSON Direct Appeal from the General Sessions Court for White County

No. CV 3122 Clara W. Byrd, Judge

No. M2001-02103-COA-R3-CV - Filed December 3, 2003

This appeal arises from the lower court’s modifica t ion of a ch ild custody arrang ement. The trial court found that a material change in circumstances had oc curred and awarded primary residential custody to Fathe r. For th e following rea sons, we a ffirm the judgmen t of the low er cour

t.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the General Sessions Court Affirmed
A LAN E. H IGHERS , J., delivered the opinion of the court, in which D AVID R. F ARMER , J., and D ON R.A SH , S.J., , joined. Thomas F. Bloom, Nashville, TN, for Appellant Gary W. Dodson, Sparta, TN , for Appellee OPINION Facts and Procedural History Ricky Lee Jenkins (“Father” ) and Hea ther Mic helle Johnson (“Mother”) were grante d a divorce by the lower c ourt on May 30 , 2000. At th is ti me , b ot h p ar ti es li ve d i n W hi te Co un ty, Tennessee. As part of

its decree, the tr

ial cour t ordere d that t

he parties sha re equal parenting and visitation time with th

eir minor daughter, who was born in January of 1998. The lower court further ordered that the child be enrolled in Cumberland Family Centers Day care pr

ior to enr ollment in

preschool or kindergarten. Mother subsequently married Roger Johnson (“Johnson”) on July 13, 2000.
On Septembe

r 13, 2000 , Mother f

iled a pe tition to modify the

final de cree of

the trial court. Mother argued that a material chang e in circumstances had arisen, after entry

of the final decree, that entitled Mother to sole custody of t he child . Mother alleged several bases f or the modification: Father’s failure to obtain proper medi cal attention for the child’s rashes; Father’s vile and inapprop riate langua ge; and unauthor ized trips t

aken by Father with the child. I

n his answer, Father-2-

deniedall alleg atio ns levied by Mother. Father then filed a counter-petition to modify the final decree, also alle ging a

materia l chang e in circumstance s. Fathe r based h is claim upon allegations that Mothe r was liv ing with her romantic partner and had a llowed smoking in the presence of the chil d, both of which were forbidden by the trial court in its decree. He further maintained tha t Mother gener ally provided an unhea

lth y environment for the child, resulting in phy sical and emotional problems for the child. Mother denied all allegations raised byFather in his counterpetition. During

this perio d, in April

of 2001, M other mov ed with Johnson to Smithville in

De Kalb Co un ty, Tennes see. Soon thereafter, Mother learned of a head start educational program for preschool age children in Smithville that ran all d ay

from Mond ay

to Thursday. Mother a

rgued at trial that the parties’ child could attend this program, in lieu of the Cumberland Family Cente rs Dayc are, if she were awarded sole custody

. At trial, the parties’ argume

nts diffe red so mewh at from those rais ed in the p leading s. Specific al ly, Moth er placed substantial emphasis upon Father’s ref usal to communicate with her regarding their child. Mother alleged that this failure to communicate contributed to the ma terial chan ge of circu mstances that necessitated a modification of the custody arrangement. Upon completion of the trial, the lower court found that a material chang e of circumstances had, indeed, arisen since the entry

of its final decree. The trial court then ruled that the child had a

djusted we

ll to her plac ement at C umberla nd Family Centers Dayc are in White County and that the child should no t be removed from this placement. Accordingly , the lower court awarded primary residential custody to Fathe r, who ha d remained a res ident of Wh ite County . Mother t

hen timely

filed this appeal c hallenging the j udgmen

t of the tr ial cour t. Issues Mother raises the following issues for our considera tion:
I. Whether

the trial court erred in awarding pr imary reside

ntial c ustody to Father despite the fac t that Fa

ther’s c onduct rende red the joint custody arr angement unworkable.
II. Whether

the trial court’s findings of fact are c ontrary to a pr eponderance of the evidence. Father raises an additional issue for our re view:
III. Whether th

e instant a

ppeal is f rivolous.

Standard of Review-3-

Our review o f the tria

l court’sconclusi ons on issue s of law is de novo , with no presumption of correctness. Kendrick v. Shoemake , 90 S.W.3d 566, 569 (Tenn. 2002). Our review of the lower court’s finding s of fac t is de novo upon the record, with a presumption of cor rectness unless the evidenc e preponderate s otherwi se. Tenn . R. App. P. 1 3(d); Kendrick , 90 S.W.3d at 569. Child Custody Modification Mother maintains that it was error for the lower court to award primary residential custody to Father. She alleges two bases of e rror. First, Mother argues that F ather shou ld not hav e been awarded primary custody because it was his b ehavior

that ren dered th

e joint cus tody arra

ngement unworkable. She also a rgues t hat the evidence preponderates ag ainst the findings of fact that underlie the lower court’s judgment. We will address ea ch contention in turn. Mother allege s that a

line of Tennessee cases stands for the proposition that, when a parent is responsible for the deterioration of a joint custody arra

ngement, the trial court is prohibited from awarding that parent primary custody. We disagr

ee. The cases a

t issue are Dix v. Carson , No. 02A01-9704-CV-00093, 1998 WL 886555, at *1 (Tenn. Ct. App. 1998), DeVault v. DeVau lt , No. 01-A-01-9601-CV00012, 1996 WL 482968, at *1 (Tenn. Ct. App. 1996), and Dalton v. Dalton , 858 S.W.2d 324 (Tenn. Ct. App. 1993). Mother r elies primarily upon the following language in Dix : “Thus, the Court [in DeVault ] found that the mother should not be permitted to, by her be havior, make joint custody unworkable and then be awarded sole custody .” Dix , 1998 WL 482968, at *12. She maintainsthat this la

nguag e codifi es a

“well-settled” principle, applied in the cases listed above, that “the party w

ho renders the joint custody arrangement unworkable by his or her behavior cannot receivesole custody.” We find that Mother’s argume

nt mischar

acterize s our holdings in the se case s. We note, as an initial matter, that child custody dete rminations are concerned solely with the needs of the children. Lentz v. Le ntz , 717 S.W.2d 8 76, 877 (T enn. 1986 ); Gaskill v . Gaskill , 93 6 S.W.2d 626, 630 ( Tenn. Ct. A pp. 1996) . A court

should never use custody

to punish or reward the parents

. Gaskill , 936 S.W.2d at 630. Instead , a court s hould promote the interests of children by placing them in the environment that provides the best emotional and physical support. Id

. Tenn. Code Ann. § 36-6-106 (2003) provides certain factors to consider when determining which custody arra ngemen twill best serve a child’s needs. One of the factors to be considered is “each parent’s past and potential for future performance of parenting responsibilities.” Tenn. Code Ann. § 36-6- 106(a)(10).
In the case s relied u

pon by Moth er, our hol dings do not crea te a rule that conc lusively determines the outcome of a custody proc eeding. Instea d, these holdings take into consideration, as one factor among many , the willingness of a parent to communicate with another about the rearing of their ch ild. The w illingne ss to communic ate reflec ts upon a pa rent’s a bility to effe ctively

fulfill his or her parentingresponsi bilities. T his, in turn , informs the court’s determination of what custody arrangement

promotes the best i nterest o f the chi ld. Acco rdingly , a court

properl y c onsidersa parent’s relucta

nce or r efusal to communic ate with

the other parent. This factor, however, is but one of many to be cons idered a

nd does no t provid e a conclusive answer to a court’s inquiry by itself.-4-

There was no error, therefore, when the lower court considered this factor, y et still awarded primary custody to Father

. Mother next argues that the lower court’s finding s of fact are against the preponderance of evidence. She first maintains that the lower court erred in finding that both pare nts are “real good parents.” According to Mother, the evidence indica tes that Father is a violent person who uses inappro p riate

language in front of the child. The evidence does indicate that Father’s e x-wife brought an assault charge at one time. Howeve r, the evidence also indicates that this occurred more than ten year s ago. Mother wa s furt her unab le to addu ce any additiona

l credib le evide

nce to persuade the trial

court tha t Father posed an y ph ysi cal or emotional threat to their child. We bear in mind that tr

ial cour ts are in t he best po sition to “o bserve witnesses a s they

testify and to ass ess their demeanor, which best situates trial judges to evaluate witness credibility.” Well s v. Tenn. Bd. of Regents , 9 S.W.3d 779, 783 (Tenn. 1999). If Mothe r fail ed to p ersuad e the l ower co urt, t hrough her testimony, that Fa

ther was any

thing but a loving parent, we will not disturb this finding. Mother also maintains that there was no evidence to support the trial court’s conclusion that the child is thriving in the Sparta day care. She bases this conclusion on the fact that the child once slapped a teacher at the day care. Considering that this is a single act by a toddler, we cannot say

that this basis pro vides much support f or Mother ’s argument. We a lso note that the record indicates the ch ild appeared b efore the lower court and was found to be “a very bright three-y

ear-old, very articulate” who se emed “very we ll-adjusted.” Further, the lower court had the oppor tunity to observe the tes timony of a worker from Cumberland Family Centers Dayc are regarding the status of the parties’ child at

that fac ility . This test

imony supporte d the conc lusion of th e lower c ourt. In sum, we find M other’s contenti ons on this i ssue witho ut merit. T

he evide nce doe s not prep onderat e against the lower court’s findings of f act. Frivolous Appeal Father raises the issue of whether Mother should be held liable for damages for instituting a frivolo us suit. Te

nn. Code A

nn. § 27-1 -122 (200 3) provid es that: When it appears to any

reviewing court that the appeal fr om any court of r

ecord was frivolous or taken solely for delay, the c ourt

may, either upon

motion of a party or of its own motion, award just damages ag ainst the appellant, which may include but neednot be limit

ed to, cos ts, intere st

on the judgment, and

expenses incurred by

the appelle e as a re sult of the appeal. This statute mu st

be applie d strictly so that legitimate appe als are not discouraged. Wakefield v. Longmire , 54 S.W.3d 300, 3 04 (Te nn. C t. App . 2001 ) (cit ing Davis v. Gulf Ins. Group , 546 S.W.2d 583, 586 (Tenn. 1977)). An appeal is only deemed f rivolous if

it is devoid

of merit or without any reasona ble chance of success. Wak efield, 54 S.W.3d at 304. We find that Mother’s appeal , tho ugh ultimately

unsuccessful, is not

so lackin g of mer

it as to be d

eemed f rivolous. As such, we decline to award damages to Father

.-5- Conclusion
F or the foregoing reasons, we affirm the judgment of the lower court. Costs of appea l are taxed to the App ellant, H eather Michele Johnson, an d her sur

ety , for whic

h executio n may

issue if ne ce ss ar y.

__________________________ ALAN E. HI

GHERS, JUDGE