1 Rule 10 (Rules of the Court of Appeals of Tennessee). -- (b)Memorandum Opin ion. The Court, with the concurr

ence of all judg

es participating

in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a for

mal opinion would

have no precedential value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION,”

shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. 

### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs A

ugust 29, 2000

DENNIS WADE BAILEY v. ZO NDRA KAYE SMITH BAILEY

An Appeal from the Chancery Court for Chester County No. 9262 Joe C. Morris, Chancellor

No. W1999-01000-COA-R3-CV - Filed October 19, 2000

This is a div orce case inv olv ing c hil d cu sto dy. Mother and Father are divorced and have one minor child. The trial court granted custody of the minor child to Father. Mother appeals, arguing that the trial court erroneously bas ed its decis ion on her lack of relationship with her father, the child’s maternal gran

dfather. We aff

irm.

Tenn. R. App. P. 3; Ju

dgment of the Trial

Court is Affirmed.

H OLLY K IRBY L ILLARD , J., delivered the opinion of the court, in which A LAN E. H IGHERS , J. and D AVID R. F ARMER , J., joined.

Jes se H . Fo rd, III, J acks on, Ten nes see, for the App ell ant Zond ra Ka ye Sm ith Bail ey.

Jac k S. Hin son , Lex ingt on, Ten nes see, for the App ell ee De nni s Wa de Ba ile y.

MEMORANDUM OP

INION 1

Plaintiff/Appellee Dennis Wade Baile y (“Fathe r”) and Defend

ant/Appellant Z

ondr a Kaye SmithBailey (“Mother”) were married in 1992. The parties have one child, Brittany Leig h Bailey (“Brittany”),born in 1993. During the marriage, Mother and Father resided in Chester County and both worked for Johnson Controls in Lexington, Tennessee.

The parties separated on January 1, 1998. Mother moved to Hardema

n County, and

lives in her mother and stepfather’s home. Father remained in the marital home in Ch ester County. On-2-

January 15, 1998, Father filed a complaint for divorce, alleging inappropriate marital conduct and irreconcilable

dif fere nces . Fat her s ough t te mpo rary c ust ody of Brittany, which was g ranted. The parties later agreed on a

sha red c ust ody a rran geme nt p lac ing B rit tan y wit h eac h pa rent for fou r days at a time. Subsequently, Mother filed a counter-complaint for divorce citing inappropr

iatemarital conduct and seeking exclusive custody of Brittany

.
The trial on this matter was heard on August 13, 1998. At the time of trial , Brittany w

as 5 years old and preparing to begin school.

At the trial, Father testified that he still lives in the marital home, a short distancefrom his parents’ home. He continues to work for Johnson Co ntrols. Father said that his parents have helped

care for Brittany si

nce her birth. F

ather testified t

hat, until the parti

es’ separation, Brittany’s regular routine consisted of he or Mother taking Brittany to his parents’ home each morning at 4:00 a.m., when they left for work. On days whe n Father’s mother did not care for Brittany, she

was taken to daycare. Father has continued that routine since the partie

s’ separation, w

hile Brittany

is with him. Fa ther asserted that, if

he were award

ed custody,

Brittany w

ould attend school w

ith chil dren sh e knows from her day

care and the ch

urch he and she r

egularly attend. Father

said that Brittany ha

s a good relationship with both sets of her grandparents and testified that he had taken Brittany to see her maternal grandfather since the parties’ separation.

Mother testified that

she had been Br

ittany’s pri

mary care giver since bir

th and that, prior t

o the parties’ separation, she had pr ovided for al l of Brittany’s basic needs. She also testified that when Brittany st

ays with her

in the home of her m

o therand stepfather,

Brittany do

es not have to leave the house as ear

ly as when sh

e is with Father.

Instead, Moth

er le av es for work at Johnson Controls at

4:00 a.m. and Mother’s step-father drops Brittany off at day care between 7:00 a.m. and 8:30 a.m. each morning. Mother asserted that, if she were award ed cus tody, she would leave her current job and obtain other emplo yment which

would allow her to

be at home when Brittany leaves for school and returns home each day. Mother acknowledg ed that Brittany has a good

relationship withall her grandparents. Mother admitted that she and her father, Brittany’s maternal grandfather, do not have a strong rel ationship and that she had not taken Brittany to see him that ye ar, even tho ugh h e and Mot her l ive in t he s ame cou nty.

Both parties presented

experts who testified that Brittany had a strong attachment to both her parentsand both sets of her grandparents. The experts re c ommended that Brittany experience as littlestress as possible beginning school and indicat ed it would be less traumatic for her to attend school where she knows people. Both experts emphasized the need for flexibility and cooperation between Mother and Father.

The trial court issued its findings and order on August 20 , 1998. The trial court noted testimon y t hat Brittany had a strong attachment to both parents and was also a ttached to her grandparents

on both sides of her family. It observed that Father had remained in the marital home andtook Brittany to church. The trial court found that Mother had adequate space in her home for Brit tan y, and found both parents to be good and fit parents. I

n its order, the tri

al court also

observed-3-

that, “for some unknown

reason,” Mother

didnot see her father, Brittany’s maternal gra ndfather, on

a regular basis and had not taken Brittany to see her father that year. It noted that Father had ta ken Brittany to see Mother’s father. After reviewing the eviden ce, the trial court awar

ded custody

to Father, finding it was not i n Brittany’ s best interest to be removed from the

“only home she knows andthe community where she now lives with her father and is attended by her gra ndparents.” From this decision, Mothe

r now appeals.

On appeal, Mother ar gues that the trial court placed undue emphasis on Brittany’s relationship

with extended family members in making its decision. She argue s tha t her lack of rela tion ship with her father, Brittany’s maternal grandf ather, was the basis for the trial court’s decision to grant custod y of Brittan y to Father

. Mother contends

that the trial cour

t, in effect, penalized her for not having a regular relat ion ship with her father, making the unsupported assumption that the grandp arent/grandc

hild relatio

nsh ip would be beneficial to Brittany. Mother assertsthat her

decision not to see her father on a regular basis w

as a parenting

decision and shoul

d notbe disturbed without a threshold finding of substantial harm to Brittany as required by the Tennessee Supreme Court’s holding in Hawk v. Hawk , 855 S.W.2d 573 (Tenn. 1993).

Mother also argues tha

t the trial court disregarded the fact that, because of Father’s work schedule
, Brittany w

ill be awakened a

t 4:00 a.m. each wo

rk day. Moth

er testified that

Britta n y would not have to awaken as early if she were awarded custody. Mother notes her testimony at trial that, if she were awarded custody, she would leave Johnson Controls and obtain employ ment which would allow her to see B

rittany off to school in

the morning and pick Brittany up after school or be at home when she got off the bus.

Our review of this case is governed by Rule 13(d) of t h e Tennessee Rule

s of Appellate Procedure, which provides that the review of findings of fact by the trial court shall be de novo upon the rec ord of t he trial court, a ccompanied by a p

resumption of cor

rectness of the f

actual findings, unless the evidence preponderates otherwise. Tenn. R. App. P. 1 3(d); Union Carbide Corp. v. Huddleston , 854 S.W.2d 87, 91 (Tenn. 1993).

In child custody and v

isitati on cases, the welfare and best interest of the child are the paramount

concerns. See Whitaker v. Whitaker , 957 S.W.2d 834, 837 (Tenn. App. 1997); Tenn. Code Ann. § 36-6-106 (1996). The determination of t he child’s best interest must turn on the particular facts of each case. See T aylor v. Taylor , 849 S.W.2d 319, 326 (Tenn. 1993); In re Parsons , 914 S.W.2d 889, 893 (Tenn. Ct. App. 1995). The Court utilizes the comparative fitn ess approach to determine the party to whom custody should be awarded. Bah v. Bah
, 668, S.W.2d 663, 666 (Tenn. Ct. App. 198 3). The factors to be considered

in making this decisi

on are set forth i

n Tennessee Code Annotated § 36-6-106 (Supp. 1999). In c hild custody cases, the trial court’s decision is to be accorded great weight, reversed on appeal only where there

is “a palpable abuse of discretion, or a judgment against the great weight of the evidence.” See Herrera v. Her rera , 944 S.W.2d 379, 386 (Ten n. Ct. App. 199 6) (quoting Cecil v. State ex. r el. Cecil , 192 Tenn. 74, 237 S.W.2d 558, 559 (1951).-4-

In this case, Mother cites the Tennessee Supreme Court’s decision in Hawk v. Hawk , 855 S.W.2d 573 (Tenn. 1993). She argues that the trial court, by noting in its custody decision the fact that Mother does not see her father on a regular bas

is, is essentially “second guessing” her parenting decision and makes “an unquestioning judicial assumption” that Brittany would benefi t fro m a relationship

with Mother’s father. See Hawk , 855 S.W.2d at 581. Mother asserts that the trial court may intervene in her parenting decision only

where there is p

roof that Mother’ s decision would “substantially harm the child.” Id. at 577-79.

Hawkinvolved grandparents attempting to assert visitation rights with their grandchildren, contrary to the parents’ de

cision not to permit t

he grandpare

nts to see the grandchildren. Id. at 576. In Hawk , the Court held tha t a co urt may not in

terfere with suc

h a parenting de

cision absent a showing of significant h

arm to the child from the decision. Hawk , 855 S.W.2d at 581. The Court asserted that it sought to

avoid “an unquestioning

judicial assumption

that grandpar

ent-grandchi

ld relationships a lways ben efit children,” noting the nece

ssary thre shold finding of h

arm before

the court can interfere with the parents’ decision . Id. at 581.

In this case, the trial court did not require visitation with Mother’s father against Mother’s wishes. Rather, the trial court considered Mother’s lack of a regu lar relationship w

ith her father in light of Brittany’s attachment to him. Hawk does not mand ate a thresh old finding of substantial harm before the trial court ca

n consider the mino

r child’s relatio

nship with

grandparents as one of the factors in its comparative fitness analysis.

Furthermore, Mother’s lack of a regular relationship with her father wa s only one

of many factors considered by the trial court in its analysis. The trial c ourt noted several factors it weighed in its analysis,

including the fa

ct that Father c

ontinues to reside

in the marital home and that Father’s mother had cared for Brittany on a daily bas is since birth

and continues to do so. In addition, the trial court considere

d the fact that, if

Fath er we re gr ant ed cu sto dy, Brittany w ould attend school w

ith children she had grown up with in the church and community.

Mother also argues that the trial court ignored the fact that awarding custody to Father meant that Brittany would be required to wake at 4:00 a.m. each work day to go to Father’s parents’ house. We acknowledge that this is considerable hardship to Brittany. However, considering the fact that this has been the routine for Brittany for most of her life, we cannot conclude that

this is sufficient reason to reverse the trial court’s decision.

In sum, we find that the t rial court did not err in considering Mother’s lack of a regular relationship with h er father in making its custody decision. Viewing the evidence as a whole, we cannot conclude that the evidence preponderates against the trial court’s award of custody to Father.

The decision of the trial court is affirmed. Costs are taxed to the App el lant, Zondra Kaye Smi th B ail ey and her s uret y, fo r wh ich exe cut ion may i ssu e ifnece ssa ry.-5-

___________________________________ HOLLY K. LI

LLARD, JUDGE