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Carr v. Carr

Court of Appeals of Tennessee, Nashville

March 1, 2018

BRENT DEWAYNE CARR
v.
KELLIE RENEA CARR

          Assigned on Briefs January 3, 2018

         Appeal from the General Sessions Court for Overton County No. 2012-CV-65 Daryl A. Colson, Judge.

         This is an appeal in a divorce proceeding wherein the Mother of the parties' child appeals the trial court's designation of Father as primary residential parent and designation of the residential parenting schedule, contending that the trial court failed to properly consider Father's history of domestic violence and abuse against her. Upon our review we have determined that the findings of fact and conclusions of law entered by the trial court did not include a discussion of the impact of Tennessee Code Annotated section 36-6-406 on the finding of domestic violence; accordingly, we vacate the decision and remand the case for the court to make appropriate findings in that regard.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court Vacated; Case Remanded

          William A. Cameron, Cookeville, Tennessee, for the appellant, Kellie Renea Carr.

          J. Steve Daniels, Livingston, Tennessee, for the appellee, Brent Dewayne Carr.

          Richard H. Dinkins, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Kenny W. Armstrong, J., joined.

          OPINION

          RICHARD H. DINKINS, JUDGE.

         Brent DeWayne Carr ("Father") and Kellie Renea Carr ("Mother") were married on December 22, 2009; one child, Gunner, was born of the marriage in July 2011.[1] The parties separated on November 30, 2012, and Father filed a complaint for divorce on December 6, 2012. On February 25, 2013, a document styled "Mediated Agreement" in which the parties resolved all issues as to the division of marital property and debts was filed with the court; an agreed Parenting Plan Order was also filed, designating both parties as Primary Residential Parents and granting each 182.5 days of residential parenting time. There is no indication in the record that either document was made the order of the court.

         The parties attempted to reconcile without success, and in August 2015 Mother left the home; on August 21, Father filed an ex parte petition for a temporary order seeking to restrain Mother "from interfering with his care, custody and control of [Gunner] . . . pending a hearing on the Restraining Order or a full and final hearing as to the divorce action." The court issued the order, extending it on September 10 to allow Father to secure service of the petition. Mother was served and filed her answer on December 9, denying the salient allegations of the petition.

         Trial was held on December 20, 2016. At the conclusion of the trial, the court declared the parties divorced and took matters related to the parenting plan under advisement. On January 10, 2017, the court entered its Findings of Fact and Conclusions of Law, and on February 10 entered the final order, incorporating the Findings and Conclusions, naming Father as Primary Residential Parent and setting out the parenting schedule for Gunner. Mother appeals the designation of Father as primary custodian of Gunner, contending that the designation of Father as primary residential parent is contrary to the preponderance of the evidence and that the court failed to "properly consider the years of substantiated domestic abuse committed by [Father]" in creating the residential parenting schedule.

         DISCUSSION

         I. Standard of Review

         "Trial courts have broad discretion in devising permanent parenting plans and designating the primary residential parent." Burton v. Burton, No. E2007-02904-COA-R3-CV, 2009 WL 302301, at *2 (Tenn. Ct. App. Feb. 9, 2009). Because decisions regarding parental responsibility often hinge on subtle factors, such as the parent's demeanor and credibility during the proceedings, appellate courts are reluctant to second-guess a trial court's parenting schedule determinations. Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997). Consequently, a trial court's decision regarding a permanent parenting plan will be set aside only when it "falls outside the spectrum of rulings that might reasonably result from an application of the correct legal standards to the evidence found in the record." Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001). It is not the role of the appellate courts to "tweak [parenting plans] . . . in the hopes of achieving a more reasonable result than the trial court." Id.

         We review the trial court's factual findings de novo upon the record, accompanied by a presumption of correctness, unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). When the trial court makes no specific findings of fact, we review the record to determine where the preponderance of the evidence lies. Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997). Accordingly, we will not disturb the parenting plan fashioned by the trial court unless that decision is based on a material error of law or the evidence preponderates against it. Adelsperger, 970 S.W.2d at 485.

         II. Analysis

         Tennessee Code Annotated section 36-6-404 requires the final order in a divorce action to incorporate a permanent parenting plan for any minor children, defined as "a written plan for the parenting and best interests of the child, including the allocation of parenting responsibilities and the establishment of a residential schedule…." Tenn. Code Ann. § 36-6-402(3) (2017). The residential schedule is to include the designation of the primary residential parent (section 36-6-402(5)), defined as the parent with whom the child resides more than 50% of the time (section 36-6-402(4)), and in developing the plan, the court "shall consider the factors at [section] 36-6-106(a)(1)-(15)."[2] Id. § 36-6- 404(b). Pertinent to the issues in this appeal, Tennessee Code Annotated section 36-6-406 provides that:

(a) The permanent parenting plan and the mechanism for approval of the permanent parenting plan shall not utilize dispute resolution, and a parent's residential time as provided in the permanent parenting plan or temporary parenting plan shall be limited if it is determined by the court, based upon a prior order or other reliable evidence, that a parent has engaged in any of the following conduct: * * *
(2) Physical or sexual abuse or a pattern of emotional abuse of the parent, child or of another person living with that child as defined in § 36-3-601.

         The trial court made the following findings of fact which are pertinent to both the designation of Father as primary residential parent and to Father's history of domestic violence; they also inform our discussion of the issues raised by Mother:[3]

1.The Court finds as a fact that this case consists of a marriage of relatively short duration and of this marriage there was a child born, named Gunner Mason Carr, date of birth, July 8, 2011.
2. The Court finds as a fact that the parties experienced marital difficulties during their marriage which resulted in the separation of the parties and a subsequent attempt at reconciliation.
3. The Court finds as a fact that the subsequent reconciliation was not successful and that in August of 2015, Ms. Kellie Renea Carr left the marital home and is currently residing in the Wilson County area of Middle Tennessee.
4.The Court finds as a fact that Gunner Mason Carr, date of birth, July 8, 2011 has been in the care, custody and control of Brent Dwayne Carr since August 2015.
5. That Court finds as a fact that Kellie Renea Carr has not had regular visits with the child since August, 2015 and the Court finds as a fact that she has made no significant child support payments nor has she had significant contact with the child, including only having one (1) visit and only called one (1) time in the last year.
6.The Court finds as a fact that the wife, Kellie Renea Carr admitted to calling in prescriptions of Hydrocodone though she claims she did this because they needed the money. There is some controversy between the parties as to the nature and the extent of the purpose of calling in the prescriptions, but the Court finds as a fact that Kellie Renea Carr admitted to calling in the prescriptions, although the purpose of which is disputed.
7.The Court finds as a fact that the child is currently in school and is doing well in school as testified to by his teacher, Lisa Miller.
8. The Court further finds as a fact that the father is involved in school and participated in the Christmas party and that the child is in the average range in school, however the child needs help with his phonics. This is supported by the testimony of the child's teacher, Lisa Miller.
9. The Court finds as a fact that the child, Gunner Mason Carr is involved in sports, as was testified to by his Coach, Timmy Ray, and that the father is active in the sporting activities and is supportive.
10.The Court finds as a fact that as a result of the significant contact that the father has had with this child over the course of the past fifteen (15) months that Gunner Mason Carr is significantly intertwined with the community of Overton County and is involved in church activities at First Baptist Church as testified to by the father, Brett Dwayne Carr and that Gunner is doing well in school, as testified to by the child's teacher and is involved in sporting activities as testified to by the child's coach, Timmy Ray.
11.The Court finds as a fact that the mother, Kellie Renea Carr has had limited contact and involvement with this child for at least the past fifteen (15) months.
12. The Court finds that Brent Dwayne Carr committed domestic violence against Kellie Renea Carr even though said violence was not reported to the authorities or the police. The Court has considered the testimony of Kellie Renea Carr which in and of itself would not be sufficient to support a finding of domestic abuse, however, the Court is of the opinion that the corroborative proof was sufficient and adequate by a preponderance of the evidence. Specifically, the Court gives credibility to the testimony of Jennifer McKee, who is a teacher at Head Start, who saw multiple bruises on Kellie Renea Carr. The testimony of Tammy Wells, who likewise works at the Head Start, who saw a black eye and a busted lip on the mother and she testified that the mother seemed afraid. The testimony of Christy Peek who saw bruising and black eyes on Kellie Renea Carr. The testimony of Christy Asburn, who is a receptionist, who saw multiple bruises on Kellie Carr. The testimony of Catrina Carr, who is a former babysitter, who testified she saw bruises ...

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