Session March 21, 2017
Appeal from the Circuit Court for Montgomery County No.
CC-15-CV-682 Ross H. Hicks, Judge
an appeal from the trial court's designation of a
child's primary residential parent. After an analysis of
the best interest factors set forth in Tennessee Code
Annotated section 36-6-106(a), the court concluded that it
would be in the child's best interest to designate Mother
as the child's primary residential parent. Father
appealed. Mother has requested attorney's fees incurred
in defending this appeal. We affirm the judgment of the trial
court, grant Mother's attorney's fees incurred on
appeal, and remand to the trial court to determine the proper
amount of Mother's award of attorney's fees.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed and Remanded
Gregory D. Smith, Clarksville, Tennessee, for the appellant,
C. Girsky, Clarksville, Tennessee, for the appellee, Patricia
Brandon O. Gibson, J., delivered the opinion of the court, in
which J. Steven Stafford, P.J., W.S., and Kenny Armstrong,
BRANDON O. GIBSON, JUDGE.
Facts & Procedural History
Daniel Paschedag ("Father"), and Appellee, Patricia
L. Paschedag ("Mother"), met in Germany and married
on May 9, 2005. Father is a German citizen who is a permanent
resident of the United States. When the parties separated,
they were living in Clarksville, Tennessee. By the time of
trial, Father had moved to San Antonio, Texas. A son was born
of the marriage on November 11, 2011 (the "Child").
The Child is speech delayed but otherwise healthy.
filed for divorce on April 6, 2015. In his complaint, Father
asked the court to designate him as the Child's primary
residential parent and to allow him to move with the Child to
Texas. He alleged that he had taken a job in San Antonio
making more money than he was able to make in Clarksville. On
April 14, 2015, Wife filed an answer to Father's
complaint for divorce, alleging that she had been with the
Child the majority of the time since Father moved to Texas
and that she had always been the Child's primary
caregiver. Mother subsequently filed a counter-complaint for
divorce from Father and requested that she be named the
Child's primary residential parent. The parties resolved
some of the issues related to their divorce through
mediation, but all issues pertaining to the Child were
reserved for trial.
trial of this matter took place on October 6,
2015. Father testified that he was living in San
Antonio and coaching soccer there. Father testified that he
had enrolled the Child in speech therapy in San Antonio.
Father also speaks German with the Child, which has been
approved by his speech therapists. According to Father, he
loves his son, and the Child is a joyful little boy who
enjoys swimming, karate, and soccer. Father stated that he
had some difficulty speaking with the child on the phone
every night because Mother does not always answer when he
calls. Mother testified that she has always been the
Child's primary caregiver. According to Mother, she was
generally responsible for feeding, waking up with the Child
during the night, changing his diapers and clothes, bathing
him, cooking, cleaning, grocery shopping, and taking the
Child to the doctor. Mother testified that, although both
parties were soccer coaches, she was the one responsible for
securing child care when she and Father were both working.
After they separated, the parties attempted to share
parenting time with the Child equally, but Mother alleged
that she still spent more than half of the time with the
Child because she took care of him on most weekends.
party also called witnesses to testify in their favor with
regard to parenting issues. Father offered testimony at trial
to insinuate that Mother frequently left the Child unattended
in her car at soccer practices and in hotel rooms during
overnight trips with the soccer team. Mother offered
testimony to refute that characterization of her behavior and
to bolster her assertions that she was the Child's
the conclusion of both parties' proof, the trial court
announced that it was declaring the parties divorced pursuant
to Tennessee Code Annotated section 36-4-129. The court then
made an oral ruling with respect to custody of the Child,
ultimately designating Mother as the Child's primary
residential parent. In explaining its decision, including its
analysis of the best interest factors set forth in Tennessee
Code Annotated section 36-6-106, the court stated the
[T]he reality now is that [Mother's] here and [Father] is
there. And the distance being what it is, it's going to
make exercising parenting time difficult. The distance alone
will cause problems.
. . . . [T]he Court has considered as it is required to
consider certain factors that go into the Court's
decision-making process regarding children and parenting. I
have considered the love, affection and emotional ties that
exist between each of these parents and their son. I have
considered the disposition of these parents, based on the
testimony given, the disposition that they each have to
provide the child with food, clothing, medical care,
education and any other necessary care that he might need. I
have also considered the degree to which each of the parents
in the past have been the primary caregiver of [the Child]. I
have considered the importance of continuity in the life of
this child. Since he is of tender years, he needs a more
structured home life than, say, a teenager. And so it's
very important that he have continuity in his life.
. . . . [L]iving out of a suitcase is no fun for anyone. It
is especially no fun for a child. They need . . . structure.
They need routine. . . . Especially when you're going
between Clarksville and San Antonio. . . . And I have
considered that in my ...