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Engh v. Engh

Court of Appeals of Tennessee, Nashville

January 10, 2017

BETTINA LUISE LIPPERT ENGH
v.
DANIEL JAMES ENGH

          Session November 2, 2016

         Appeal from the Circuit Court for Davidson County No. 14D-1210 Philip E. Smith, Judge

         Father appeals the trial court's designation of Mother as the primary residential parent for their daughter. Applying the factors in Tenn. Code Ann. § 36-6-106(a) to the testimony, the trial court determined, inter alia, that Mother acted as the primary caregiver, formed a stronger emotional bond with the child, and showed a greater willingness to foster a relationship between the child and Father. Following a thorough review of the record, we have determined that the trial court correctly identified and properly applied the relevant legal principles and that the evidence does not preponderate against the trial court's findings of fact. Accordingly, we affirm the trial court's decision to make Mother the primary residential parent.

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

          Mary B. Langford, Nashville, Tennessee, for the appellant, Daniel James Engh.

          John J. Hollins, Jr. and Sarah Richter Perky, Franklin, Tennessee, for the appellee, Bettina Luise Engh.

          Frank G. Clement, Jr., P.J., M.S., delivered the opinion of the Court, in which Richard H. Dinkins and W. Neal McBrayer, JJ., joined.

          OPINION

          FRANK G. CLEMENT, JR., P.J., M.S.

         Mother and Father married on March 17, 2007. Shortly after the birth of their only child on March 20, 2011, Father lost his job as a researcher at Vanderbilt University due to lack of funding. Mother and Father agreed that he would stay home with the child because Mother worked as a nurse practitioner. For approximately one year, Father took care of the child during the day and brought the child to Mother's place of work to breastfeed. Co-workers of Mother testified that Father often left the child in the care of Mother beyond the time necessary for breastfeeding, which interfered with Mother's ability to care for her patients.

         In 2012, Father told Mother he wanted to return to work, so she obtained a nanny and began looking for daycare. Father worked for approximately one week. Despite Father's unemployment, the child began attending a daycare program in July or August of 2012, Monday through Friday. According to the daycare employee's testimony, Father dropped the child off at the daycare program at 8:30 a.m. and then picked the child up at 4:30 p.m. On April 19, 2014, Father accepted a job and relocated to Sioux Falls, South Dakota, where his parents and extended family lived.

         Ten days after Father relocated, Mother filed for divorce alleging irreconcilable differences and inappropriate marital conduct. She also requested primary custody of the child. Mother simultaneously filed a petition for a temporary restraining order and temporary exclusive custody of the minor child and the marital residence. The trial court granted the petition and gave Father parenting time.

         The main focus of the proceedings in the trial court concerned the designation of the child's primary residential parent. During the proceedings, Father argued that he had been the primary caretaker of the child while unemployed until the time he moved to Sioux Falls. Mother argued that Father did not act as the primary caretaker during that time because, rather than care for the child while he was at home, Father dropped the child off at her workplace, with a nanny, or at daycare. The trial court found Mother more credible than Father. Accordingly, it awarded the divorce to Mother and designated Mother as the primary residential parent. Father initiated this appeal challenging only the trial court's designation of Mother as the primary residential parent for their daughter.

         Standard of Review

         In this non-jury case, our review is de novo on the record with a presumption that the trial court's factual findings are correct, unless the evidence preponderates against those findings. Tenn. R. App. P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). A trial court's conclusions of law are ...


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