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Mayberry v. Mayberry

June 17, 2003

DAVID WAYNE MAYBERRY
v.
JANILYN RHEA MAYBERRY



Direct Appeal from the Chancery Court for Rutherford County No. 98DR-1668 Don R. Ash, Chancellor

SYLLABUS BY THE COURT

This appeal involves a petition to modify a parenting plan. The trial court found there to be a material and substantial change in circumstances and that it was in the best interest of the minor children that Mother be designated the primary residential custodian with full decision making authority. Father was awarded more than standard visitation. Father appeals and raises one issue on appeal. For the following reasons, we affirm.

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

The opinion of the court was delivered by: Alan E. Highers, Judge

Alan E. Highers, J., delivered the opinion of the court, in which David R. Farmer, J., and Holly Kirby Lillard, J., joined.

OPINION

Facts and Procedural History

David Wayne Mayberry ("Father") and Janilyn Rhea Mayberry ("Mother") were granted a divorce on October 28, 1999. At this time, the court approved a parenting plan whereby the parties would share parenting time equally and joint decision making authority regarding their two minor children.

On February 28, 2001, Father filed a petition for contempt against Mother and for modification of the parenting plan. Specifically, Father alleged that he had performed almost all the parenting responsibilities regarding the children's "school, health, and extra-curricular activities with little or no involvement from [Mother]." Mother filed her answer and counter-petition on April 16, 2001, denying that there had been a substantial and material change in circumstance which would require a modification of the existing parenting plan. Mother further denied that Father's proposed parenting plan was in the best interest of the minor children. In addition, Mother alleged that Father was in contempt for his failure to pay child support as ordered and for his failure to relinquish his interest in the UTMA *fn1 account of Mother's child from a previous relationship. Father filed an amended petition for contempt and modification of parenting plan and filed his answer to Mother's counter-petition on June 6, 2001. Thereafter, on August 9, 2001, Mother filed her answer to Father's amended petition.

The trial was held on October 16 and 17 of 2001. The lower court found there to be a "material and substantial change in circumstances" such that the prior parenting plan was no longer workable. After considering the best interest of the minor children and the comparative fitness of the parents, the court found that Mother was the proper party to be designated as the primary residential custodian. In addition, the court granted Mother full decision- making authority regarding matters of education, health care, sports activities and religion.

Thereafter, Father filed a motion to alter or amend the judgment of the trial court alleging that the lower court incorrectly applied the facts of the case in its comparative fitness analysis. At the December 17, 2001 hearing, the trial court amended the parenting plan in part regarding Father's visitation with the children, but denied Father's request for a new trial on the issue of who should be the primary residential custodian. Thereafter, Father timely filed this appeal and raises the following issue for our review.

Issue

I. Whether the lower court erred in its application of the best interest test and comparative fitness analysis when it awarded Mother custody of the parties' two minor children.

Standard of Review

Decisions involving matters of child custody are "factually driven and require the careful consideration of numerous factors." Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997) (citations omitted). Further, the trial court "had the benefit of being able to observe the manner and demeanor of these two parents and all of the other witnesses who testified in this case," while this Court is limited to a review of the cold printed word. Branch v. Thompson, No. M2001-01231-COA-R3-CV, 2002 Tenn. App. LEXIS 821, *22 (Tenn. Ct. App. Nov. 26, 2002). Consequently, trial courts are given wide discretion in determining these matters. Wilson v. Wilson, No. E2000-01374-COA-R3-CV, 2001 Tenn. App. LEXIS 415, *6 (Tenn. Ct. App. June 22,2001) (citing Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996)). We review the trial court's conclusions of law "`under a pure de novo standard of review, according no deference to the conclusions of law made by the lower courts.'" Kendrick v. Shoemake, No. E2000-01318-SC-R11-CV, 2002 Tenn. LEXIS 489, at *6 (Tenn. Nov. 1, 2002) (citing S. Constructors, Inc. v. ...


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