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Gooding v. Gooding

Court of Appeals of Tennessee, Nashville

April 29, 2015


Session March 25, 2015.

Page 775

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court Reversed and Remanded. Appeal from the General Sessions Court for Fentress County. No. 2013CV329. Michael Todd Burnett, Judge.

Daniel H. Rader, IV, Cookeville, Tennessee, for the appellant, Timothy Joshua Gooding.

Brett A. York and Tiffany S. Lyon, Crossville, Tennessee, for the appellee, Jessika Ann Gooding.

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the court, in which RICHARD H. DINKINS, J., and W. NEAL MCBRAYER, J. joined.


Page 776


Father appeals the parenting schedule contending it is not supported by the evidence and that the trial court erred by implicitly basing the parenting schedule on an erroneous legal standard, the tender years doctrine. Decisions concerning parenting plans are reviewed based on the deferential abuse of discretion standard. Nevertheless, discretionary decisions must be based on the applicable law and the relevant facts; accordingly, they are not immune from meaningful appellate review. In all actions tried upon the facts without a jury, the trial court is required, pursuant to Tenn. R. Civ. P. 52.01, to find the facts specially, state separately its conclusions of law, and enter judgment accordingly. The underlying rationale for this mandate is that it facilitates appellate review by affording a clear understanding of the basis of the trial court's decision; in the absence of findings of fact and conclusions of law, this court is left to wonder on what basis the court reached its ultimate decision. When a trial court fails to comply with Rule 52.01, the appellate court cannot determine whether the trial court applied the correct legal standard or what reasoning it employed. In such circumstances, the appellate court is not required to review the discretionary decision with deference. In this case, the trial court established a parenting schedule without identifying the legal principles it applied or the factual basis for its decision; therefore, it failed to satisfy the Rule 52.01 mandate. Having no way of knowing the reasoning for the trial court's decision, we conducted a de novo review of the record to determine where the preponderance of the evidence lies and found no factual or legal basis for the disparity in parenting time afforded the parents. Accordingly, we reverse the parenting schedule and remand with instructions for the trial court to establish a parenting schedule consistent with the statutory aspiration to maximize each parent's participation in the life of the child based on all relevant facts and circumstances. Further, the court is to identify the factual and legal basis upon which the new parenting schedule is based as Tenn. R. Civ. P. 52.01 requires.


Timothy Joshua Gooding (" Father" ) and Jessika Ann Gooding (" Mother" ) are the parents of one child, a son, born in June 2013. Father filed for divorce on August 5, 2013. The trial court established a temporary parenting plan on August 22, 2013; the child was two months old at the time. The initial plan was modified on December 3, 2013, to extend Father's parenting time and to set Father's child support obligation at $259 per month. On May 23, 2014, the trial court established a third temporary parenting plan that gave Father parenting time every other weekend and three hours every other Tuesday; the plan also established holiday and vacation parenting time.

The case was tried on June 26, 2014; the child was one year old at the time of trial. Father testified, but Mother did not. Father's mother was present and prepared to be called as a witness, but the parties stipulated that she would " corroborate what Father has testified to and that he is good with the child and loves his child." Father proposed a parenting plan for the child that called for equal parenting time year-round, with each parent having the

Page 777

child on alternating weeks. Although Mother did not testify, her counsel recommended the adoption of the existing temporary parenting plan. At the conclusion of the trial, the court issued an oral ruling that adopted the existing temporary plan.

The court entered its order on July 22, 2014. Neither the order nor the oral ruling contained any findings of fact. The court declared the parties divorced under Tenn. Code Ann. § 36-4-129. With respect to the parenting plan, which is the only issue on appeal, the court adopted the terms of the May 23, 2014 temporary plan but granted Father additional parenting time during the summer of 2014. The order further provided that, beginning in September 2014, Mother would have the majority of the parenting time with Father having parenting time on three weekends each month and a three-hour visitation on Tuesdays. Additionally, starting in the summer of 2015, Father was granted equal parenting time by alternating weeks with Mother for the duration of the summer break of Morgan County Schools. Father's child support obligation remained $259 per month.

In this appeal, Father challenges the parenting schedule ordered by the court. He contends the parenting schedule was not supported by any evidence and that the trial court erred by implicitly basing the disparate parenting schedule on the tender years doctrine.[1] Specifically, he argues that because the child is not in school there is no justification for awarding different amounts of parenting time in the summer and school year. He further contends that year-round equal parenting time is in the best interest of the parties' one-year-old child.[2] The specific issues raised by Father read as follows:

1. Whether the Trial Court erred in adopting a parenting schedule that gives the Father only limited periodic weekends for visitation of his child (born June 17, 2013); and whether the Court should have instead ordered a shared co-equal parenting arrangement and schedule of every alternate week, year-round, where the only evidence presented at trial was presented by Father demonstrating that the best interests of the child required an equal parenting schedule in accordance with the factors in Tenn. Code Ann. § 36-6-106, and where Mother chose not to testify or offer any evidence on her own behalf at all.
2. Whether the Trial Court implicitly found that the child's best interests warranted a shared co-equal parenting schedule during summers, with no basis or explanation for failing to order the same shared co-equal parenting schedule year round, where the child is not in school and no other factor preponderates against a year-round schedule.
3. Whether the Trial Court improperly applied the tender years doctrine or otherwise placed an improper burden on Father, by operating from an apparent presumption that fathers

Page 778

should have only a limited weekend visitation schedule that was not supported by any evidence, and where the only evidence presented at trial was the evidence presented by Father, and where Mother chose not to testify or offer any evidence on her own behalf at all.
4. Whether the trial court erred by failing to calculate child support in accordance with the actual visitation schedule, and whether the child support obligation should be modified to reflect a shared co-equal parenting schedule proposed by Father.


I. Parenting Plans and Schedules

The General Assembly has established the aspirational goal for the courts to craft custody arrangements that permit both parents to " enjoy the maximum participation possible in the life of the child" consistent with the appropriate factors and circumstances. Tenn. Code Ann. § 36-6-106(a). Still, the details of parenting plans remain " peculiarly within the broad discretion of the trial judge." Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014) (citing Armbrister v. Armbrister, 414 S.W.3d 685, 693 (Tenn. 2013)). Furthermore, " [i]t is not the function of appellate courts to tweak a [residential parenting schedule] in the hopes of achieving a more reasonable result than the trial court." Id. (citing Armbrister, 414 S.W.3d at 693). This is because decisions regarding parenting arrangements are factually driven and require careful consideration of numerous factors, and trial judges, who have the opportunity to observe the witnesses and make credibility determinations, are better positioned to evaluate the facts than appellate judges. Id. (citing Armbrister, 414 ...

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