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Grissom v. Grissom

Court of Appeals of Tennessee, Jackson

May 17, 2019


          Assigned on Briefs April 1, 2019

          Appeal from the Chancery Court for Crockett County No. 10090 George R. Ellis, Chancellor

         The trial court designated Father primary residential parent of the parties' minor child, and adopted Father's proposed parenting plan. Mother appeals. Because we conclude that the trial court's order regarding the designation of the child's primary residential parent does not contain sufficient findings of fact such that meaningful appellate review is possible, we vacate the order of the trial court and remand for further proceedings.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated and Remanded

          G. Michael Casey, Jackson, Tennessee, for the appellant, Nicole Xiomara Grissom.

          Andrea D. Sipes, Jackson, Tennessee, for the appellee, William Michael Grissom.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Charles D. Susano, Jr., and Andy D. Bennett, JJ., joined.




         This is a child custody dispute. The parties at issue, William Michael Grissom ("Father") and Nicole Xiomara Grissom ("Mother") married on September 24, 2012, and have one minor child together ("the Child"). The child was born in 2012. Father filed for divorce on July 11, 2016, in the Chancery Court for Crockett County ("trial court"); therein, Father alleged that the parties separated in January of 2016 and that Mother had since moved to Mississippi. The complaint for divorce further provided that the parties had been exercising parenting time by alternating weeks with the child but that this arrangement was no longer feasible. Father alleged that the living conditions in Mother's new home were not suitable for the Child and requested that the trial court issue an emergency custody order naming Father the primary residential parent and allowing Mother parenting time every other weekend. While Father's request for ex parte relief was denied, the trial court set the matter for hearing and on August 24, 2016, entered an order naming Father primary residential parent and approving the temporary parenting plan proposed by Father.

         The parties eventually settled all of the issues surrounding their divorce aside from the matter of custody of the Child. As such, the matter was set for trial on June 20, 2018. The trial court heard testimony from the parties, Mother's boyfriend, the maternal grandmother, Father's sister, and various other family members and friends. Overall, the testimony at trial reflected that the Child is happy, well-adjusted, and has a strong relationship with both parents. Mother and Father both confirmed that the Child has a loving relationship with each of them, and they agreed that it is best for the Child to maintain a strong bond with both parents. The parties disputed, however, who was better suited to be the primary caregiver of the Child, in light of various factors such as the parties' work schedules and continuity in the Child's current schedule. For example, Father was adamant that because he had acted as the primary residential parent for nearly two years leading up to the hearing, it was best for the Child to remain in her current routine. Mother, on the other hand, pointed out that Father's work hours are far more irregular than Mother's are and that the Child is often cared for by Father's family while Father is at work.[1] As such, Mother maintained that because she has a more regular 7:30 a.m. to 4:00 p.m. work schedule, the Child would be able to spend more time in the care of an actual parent if the trial court designated Mother primary residential parent.

         At the close of proof, the trial court concluded that it was in the best interests of the Child to name Father primary residential parent and to approve Father's proposed plan. Under this plan, Father has 285 days of parenting time, while Mother spends every other weekend with the Child for a total of 80 days. The trial court stated, without any further explanation, that it had considered the statutory best interest factors and that by its calculation, the allocation of the factors was "[t]en for the father and three for the mother." A written order reiterating this finding was entered July 30, 2018.

         Mother thereafter filed a timely notice of appeal to this Court.

         Issues Presented

         Mother raises the following issues on appeal, which have been taken from her brief and slightly restated:

1. Whether the trial court erred in designating Father as the child's primary residential parent.
2.Whether the trial court erred in adopting Father's proposed parenting plan.
3.Whether the trial court erred in ordering Mother to pay the court costs incurred in this matter.


         Because this case was tried by the court sitting without a jury, our review is de novo upon the record with a presumption that the findings of fact are correct unless the evidence preponderates otherwise. Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984); Tenn. R. App. P. 13(d). We review the legal conclusions of the trial court de novo with no such presumption of correctness. Chaffin v. Ellis, 211 S.W.3d 264, 285 (Tenn. Ct. App. 2006). In weighing the preponderance of the evidence, the trial court's findings of fact that are based on witness credibility are given great weight, and they will not be overturned absent clear and convincing evidence to the contrary. In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2002); see also Reeder v. Reeder, 375 S.W.3d 268, 278-79 (Tenn. Ct. App. 2012) (citing Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997)) ("Decisions concerning custody and visitation often hinge on subtle factors, such as the parents' demeanor and credibility during the proceedings.").

         We first address Mother's argument that the trial court erred in naming Father the primary residential parent. Decisions involving the custody of a child are among the most important decisions faced by the courts. Steen v. Steen, 61 S.W.3d 324, 327 (Tenn. Ct. App. 2001). Indeed, "[b]y statute as well as case law, the welfare and best interests of the child are the paramount concern in custody, visitation, and residential placement determinations, and the goal of any such decision is to place the child in an environment that will best serve his or her needs." Burden v. Burden, 250 S.W.3d 899, 908 (Tenn. Ct. App. 2007) (quoting Cummings v. Cummings, No. M2003-00086-COA-R3-CV, 2004 WL 2346000, at *5 (Tenn. Ct. App. Oct. 15, 2004)). As such, "[t]rial courts have broad discretion to fashion custody and visitation arrangements that best suit the unique circumstances of each case, and the appellate courts are reluctant to second-guess a trial court's determination regarding custody and visitation." Reeder, 375 S.W.3d at 278 (citing Parker v. Parker, 986 S.W.2d 557, 563 (Tenn. 1999)); see also C.W.H. v. L.A.S., 538 S.W.3d 488, 495 (Tenn. 2017) (quoting Armbrister v. Armbrister, 414 S.W.3d 685, 693 (Tenn. 2013)) ("[D]etermining the details of parenting plans is peculiarly within the broad discretion of the trial judge.").

         While trial courts are afforded broad discretion in this area, "they still must base their decisions on the proof and upon the appropriate application of the applicable principles of law." Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996) (citing D. v. K., 917 S.W.2d 682, 685 (Tenn. Ct. App. 1995)). Thus, a trial court's decision regarding custody will be set aside only if 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." In re Adoption of A.M.H., 215 S.W.3d at 809.

         A trial court's broad discretion on custody matters extends to the question of which parent should be named primary residential parent. See Kathryne B.F. v. Michael David B., No. W2014-01863-COA-R3-CV, 2015 WL 4366311, at *8 (Tenn. Ct. App. July 16, 2015) (quoting In re Shayla H., No. M2013-00567-COA-R3-JV, 2014 WL 2601564, at *5 (Tenn. Ct. App. June 9, 2014)) ("'[T]rial courts have broad discretion in determining which parent should be the primary residential parent[.]'"). "Thus, 'the ultimate question as to who should be the primary residential parent on appeal is whether the trial court abused its discretion in its selection.'" Id. (quoting Maupin v. Maupin, 420 S.W.3d 761, 770 (Tenn. Ct. App. 2013)). "In choosing which parent to designate as the primary residential parent for the child, the court must conduct a 'comparative fitness' analysis, requiring the court to determine which of the available parents would be comparatively more fit than the other." Chaffin, 211 S.W.3d at 286 (citing Bah v. Bah, 668 S.W.2d 663, 666 (Tenn. 1983)). "In engaging in this analysis, the court must consider the factors set out in Tennessee Code Annotated § 36-6-106(a)." Id. (footnote omitted).

         The factors provided in section 36-6-106(a) are as follows:

(1) The strength, nature, and stability of the child's relationship with each parent, including whether one (1) parent has performed the majority of parenting responsibilities relating to the daily needs of the child;
(2) Each parent's or caregiver's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child's parents, consistent with the best interest of the child. In determining the willingness of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child's parents, the court shall consider the likelihood of each parent and caregiver to honor and facilitate court ordered parenting ...

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