Assigned on Briefs November 15, 2017
Appeal from the Juvenile Court for Hamilton County No.
269-765 Robert D. Philyaw, Judge.
a child custody case. Mother appeals the trial court's
determination that Father should be designated as the
child's primary residential parent. Father requests
attorney's fees for defending this appeal. Discerning no
error, we affirm the decision of the trial court. This Court
deems the appeal frivolous and remands this matter to the
juvenile court to determine attorney's fees and costs to
be awarded to Father.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed and Remanded
R. Beard, Chattanooga, Tennessee, for the appellant, Cintia
Sullivan Moore, Chattanooga, Tennessee, for the appellee,
Jacob K. B.
Brandon O. Gibson, J., delivered the opinion of the court, in
which Charles D. Susano, Jr., and John W. McClarty, J.J.,
BRANDON O. GIBSON, JUDGE.
Facts & Procedural History
Cintia L. C. ("Mother") and Appellee Jacob K. B.
("Father") have one child together (the
"Child"), who was born on September 17, 2015. The
parties were never married but cohabitated between February
and December 2015. Mother has another son from a marriage
that pre-existed the parties' relationship. Father has a
daughter and a son from an earlier relationship.
after the birth of the Child, Mother and Father's
romantic relationship began to unravel, and they ultimately
separated in late December 2015. On January 4, 2016, Mother
secured an ex parte temporary restraining order
against Father that was subsequently dismissed by the court.
In the following weeks, Mother withheld the Child from Father
and refused to allow visitation. In light of this, Father
filed a petition for custody of the Child on January 13,
2016, in the Juvenile Court for Hamilton County, Tennessee.
Father simultaneously filed a motion to prevent Mother from
leaving the jurisdiction of the court with the Child in light
of statements Mother made about moving to Texas with the
Child. The parties entered into a mediated agreement on
January 18, 2016, which provided that Father could begin
seeing the Child for one or two hours at a time during
supervised visits pending the outcome of his petition for
custody. According to Father, he agreed to supervised
visitation at the time because supervised visitation was
better than not being allowed to see his Child at all.
petition was initially heard by a Magistrate for the juvenile
court. On April 12, 2016, the Magistrate rendered his
findings and recommendations, which essentially granted
Father's petition, designated him as primary residential
parent, and adopted Father's proposed parenting plan. The
juvenile court subsequently entered an order adopting the
recommendations of the Magistrate with only minor changes.
According to this parenting plan, parenting time of the Child
was shared equally between Mother and Father, and Father was
designated as the Child's primary residential parent.
thereafter requested that the juvenile court conduct
rehearing of the proof presented to the Magistrate on
Father's petition for custody of the Child. The juvenile
court granted Mother's request and held a thorough de
novo rehearing of the Magistrate's findings and
recommendations, which took place over the course of three
days - August 11, September 1, and October 20, 2016. The
court heard the testimony of Mother, Father, and more than
ten other witnesses, and several exhibits were entered into
evidence for the court's review. At the conclusion of the
proof, the court took the matter under advisement. The court
then entered its findings of fact and conclusions of law on
December 8, 2016. The juvenile court's order is a
detailed eleven-page analysis of the issues raised by the
parties in this case in which the court made a
"determination of the child's best interest by
applying the factors in TCA § 36-6-106, in order to
determine custody and a parenting schedule." Further,
the juvenile court stated its goal of crafting "a
custody arrangement that permits both parents to enjoy the
maximum participation possible in the life of the
child." The court then went through each best interest
factor, setting forth its findings on each factor and the
reasons therefor. The court essentially found that all
applicable factors weighed evenly for both parties with the
exception of Tennessee Code Annotated section 36-6-106(a)(2)
and (9), which favored Father. The court went on to hold as
This matter is between two parties who have separated and
appear to be adjusting to the shift in their relationship.
Furthermore, according to testimony during trial, the only
current discrepancy that the parties have is related to
changes in schedules which may require future accommodation.
Otherwise, it is the finding of the court that the parties
have the disposition to co-parent equally in the best
interest of their daughter.
As such, the court finds the following regarding the
parenting plan ...