Assigned on Briefs January 3, 2018
from the General Sessions Court for Overton County No.
2012-CV-65 Daryl A. Colson, Judge.
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.
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.
Steve Daniels, Livingston, Tennessee, for the appellee, Brent
Richard H. Dinkins, J., delivered the opinion of the court,
in which D. Michael Swiney, C.J., and Kenny W. Armstrong, J.,
RICHARD H. DINKINS, JUDGE.
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. 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.
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.
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.
Standard of Review
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.
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.
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)." 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.
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:
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
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
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 ...