Session March 6, 2019
from the Juvenile Court for Rutherford County No. 11756-C
Donna Scott Davenport, Judge
an appeal from the trial court's order that: (1)
designated Father/Appellee as primary residential parent; (2)
awarded him sole decision-making authority; and (3) set
visitation. Mother/Appellant appeals: (1) the designation of
Father as primary residential parent; (2) the award of sole
decision-making authority to Father; and (3) her number of
parenting days with the child. Because the trial court failed
to make any findings regarding decision-making authority, we
vacate the trial court's award of sole decision-making
authority to Father and remand for findings of facts and
conclusions of law related to same. We also conclude that the
trial court abused its discretion when it failed to maximize
Mother's parenting time with the child. Therefore, we
reverse the trial court's visitation award and remand for
a more equal award of parenting time. Finally, we reverse the
trial court's order concerning child support and remand
for a recalculation of support consistent with the new
parenting schedule entered on remand. The trial court's
order is otherwise affirmed.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Reversed in Part; Vacated in Part; Affirmed in Part and
Capparella, Nashville, Tennessee, for the appellant, Kendall
Rebecca L. Lashbrook, Murfreesboro, Tennessee, for the
appellee, Joshua R.
Armstrong, J., delivered the opinion of the court, in which
J. Steven Stafford, P.J., W.S. and Arnold B. Goldin, J.,
R. ("the Child") was born, in September 2015, to
Kendall R. ("Mother" or "Appellant") and
Joshua R. ("Father" or
"Appellee"). Mother and Father had a brief relationship
but were never married. Shortly after Mother and Father ended
their relationship, Mother began dating another man. Soon
thereafter, Mother realized she was pregnant. Mother claims
that she believed that her boyfriend was the Child's
father. The Child's paternity was determined only after
Mother's boyfriend took a paternity test, which excluded
him as the Child's father. After learning her boyfriend
was not the father, Mother surmised that Joshua R. was the
Child's father. Mother testified that she did not have
Father's contact information, but was able to locate his
sister via social media. Mother sent Father's sister a
message on social media asking his sister to have Father
contact her. After Father failed to contact Mother, she sent
a picture of the Child to Father's sister. Soon
thereafter, Father contacted Mother, and an at-home DNA test
confirmed Joshua R. as the Child's father.
immediately sought parenting time with his then
five-month-old daughter. Without a written order in place,
Mother gave Father parenting time with the Child, including a
few overnights. Then, sometime in February or March 2016,
Father picked up the Child from Mother and was driving home
when Mother called and asked Father for his address because
she needed it for child support purposes. Father, according
to Mother's testimony, became very angry. Father contends
that Mother began asking him several questions, which he did
not answer because he was driving. Both parties agree that
Mother told Father he could not keep the Child if he did not
provide the information she sought. Further, both parties
agree that Mother threatened to call the police and allege
that Father kidnapped the Child if he did not bring the Child
back to her. Upon hearing this threat, Father returned the
Child to Mother. Mother testified that, upon Father's
return, he threw the Child at her while the Child was still
in her car seat. Days after this incident, Father texted
Mother about seeing the Child, but Mother did not respond to
11, 2016, Father filed a Petition to Establish Paternity in
the Juvenile Court for Rutherford County ("trial
court"). Mother filed an answer on August 1, 2016. On
August 2, 2016, the trial court entered an order confirming
Appellee's paternity and setting a temporary parenting
plan. The temporary parenting plan awarded Father visitation
every other week from Monday at 10:00 a.m. until the
following Monday at 10:00 a.m. During Father's weekly
visitation, the trial court awarded Mother each Wednesday
from 8:30 a.m. until Thursday at 8:30 a.m. Accordingly, the
parties' parenting time was almost equal under the trial
court's initial parenting plan with Mother receiving
somewhat more time.
trial court conducted a bench trial on Father's petition
on June 27, 2017, December 14, 2017, and December 21, 2017.
By order of February 26, 2018, the trial court, inter
alia, named Father as the Child's primary
residential parent, awarded Father sole decision-making
authority, and awarded Mother visitation with the Child every
other weekend. The Permanent Parenting Plan Order
("Parenting Plan") awarded Mother 100 days with the
Child and awarded Father 265 days with the
Child. Mother appeals.
perceive that there are five issues Mother raises on appeal,
which we state as follows:
1. Whether the trial court erred when it refused to consider
evidence of Father's Driving under the Influence
("DUI") arrests that occurred prior to the
2. Whether the trial court erred when it mischaracterized
evidence in the record.
3. Whether the trial court erred when it designated Father as
the primary residential parent.
4. Whether the trial court erred when it awarded Father all
major decision-making authority.
5. Whether the trial court erred when it failed to maximize
Mother's parenting time.
Standard of Review
review a non-jury case de novo upon the record with
a presumption of correctness as to the findings of fact
unless the preponderance of the evidence is otherwise."
Tennessee Farmers Mut. Ins. Co. v. Debruce, No.
E2017-02078-COA-R3-CV, 2018 WL 3773912, at *3 (Tenn. Ct. App.
Aug. 9, 2018) (citing Tenn. R. App. P. 13(d); Bowden v.
Ward, 27 S.W.3d 913, 916 (Tenn. 2000)). The trial
court's conclusions of law are reviewed de novo
and "are accorded no presumption of correctness."
Brunswick Acceptance Co., LLC v. MEJ, LLC, 292
S.W.3d 638, 642 (Tenn. 2008).
Father's Previous DUIs
argues that the trial court erred when it barred her from
questioning Father, on cross-examination, regarding two of
his three DUI arrests, which occurred between May 2011 and
November 2013 ("Kansas DUIs"). Father's
counsel questioned Father on direct examination concerning
his Kansas DUIs and Father testified to same. However, when
Mother's counsel began questioning Father about the DUIs
on cross-examination, Father's counsel objected, stating
that the information was irrelevant because the DUIs predated
the Child's conception. Mother's counsel argued that
the Kansas DUIs were relevant to Father's character and
ability to parent. The trial court sustained Father's
objection and ruled that "anything prior to the birth of
th[e] [C]hild [was] not relevant."
Court has previously explained that
Rule 401 of the Tennessee Rules of Evidence defines relevant
evidence as "evidence having any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence." Tenn. R. Evid.
401. "In other words, evidence is relevant if it helps
the trier of fact resolve an issue of fact." Howe v.
Howe, No. E2016-01212-COA-R3-CV, 2017 WL 1324177, at *4
(Tenn. Ct. App. Apr. 10, 2017) (citing Neil P. Cohen, et al.,
Tennessee Law of Evidence § 4.01, at 4-9
(5th ed. 2005)). "Evidence which is not
relevant is not admissible." Tenn. R. Evid. 402. If the
evidence is relevant, it is admissible unless otherwise
excluded by law. Id.
Excluding relevant evidence is "an extraordinary step
that should be used sparingly." In re Envy J.,
No. W2015-01197-COA-R3-PT, 2016 WL 5266668, at *10 (Tenn. Ct.
App. Sep. 22, 2016) (citations omitted). A trial court may
exclude relevant evidence "if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence." Tenn. R. Evid.
403. This rule requires trial courts to conduct a two-part
balancing test. Howe, 2017 WL 1324177, at *4 (citing
White v. Vanderbilt Univ., 21 S.W.3d 215, 227 (Tenn.
Ct. App. 2002)). First, the trial court must "balance
the probative value of the [challenged evidence] against the
countervailing factors." Id. (citing
White, 21 S.W.3d at 227). "After the court has
engaged in the balancing analysis, it may then exercise its
discretion to determine whether the evidence should be
excluded if the prejudice substantially outweighs the
probative value of the evidence." Id. (citing
White, 21 S.W.3d at 227). The trial court is in the
most suitable position to conduct this balancing test under
Rule 403. Id.
In re Angel M., No. E2016-02061-COA-R3-PT, 2017 WL
3228314, at *10 (Tenn. Ct. App. July 31, 2017). Trial courts
are generally afforded a "wide degree of latitude"
regarding decisions to admit or exclude evidence and will
only be overturned on appeal where there was an abuse of
discretion. Otis v. Cambridge Mut. Fire Ins. Co.,
850 S.W.2d 439, 442 (Tenn. 1993) (citing Strickland v.
City of Lawrenceburg, 611 S.W.2d 832, 835 (Tenn. Ct.
App. 1980); Tenn. R. Evid. 401; Austin v. City of
Memphis, 684 S.W.2d 624, 634 (Tenn. Ct. App. 1984);
Inman v. Aluminum Co. of America, 697 S.W.2d 350,
354 (Tenn. Ct. App. 1985)). The trial court abuses its
discretion when it applies the incorrect legal standard or
reaches a decision that is clearly unreasonable.
Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 709
(Tenn. Ct. App. 1999). "Although the discretionary
nature of the decision does not shield it completely from
appellate review, it does result in less rigorous appellate
scrutiny." In re Envy J., 2016 WL 5266668, at
*6 (citing White, 21 S.W.3d at 222 (citations
conclude that the trial court abused its discretion when it
refused to allow Mother's counsel to cross-examine Father
concerning his Kansas DUIs. First, information regarding a
parent's history with alcohol and the decisions that
parent makes when consuming alcohol is certainly probative in
a child custody proceeding because such evidence goes to a
parent's decision-making skills, which affect his or her
ability to parent. See In re Price v. Price, No.
02A01-9609-CH-00228, 1997 WL 338588, at *7 (Tenn. Ct. App.
June 20, 1997) ("DUI is a serious offense that shows a
lack of judgment on [the parent's] part."). Here,
the probative value in hearing evidence regarding
Father's previous DUIs is not "outweighed by the
danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative
evidence." Tenn. R. Evid. 403. Therefore, such evidence
would have been relevant to the current proceeding.
Father "opened the door" to such testimony when he
testified regarding his Kansas DUIs on direct examination.
"Tennessee has long recognized a
'good-for-the-goose, good-for-the-gander' rule that
'if a party opens the door for the admission of
incompetent evidence, he is in no plight to complain that his
adversary followed through the door thus opened; and this,
although no objection was made in the first instance to the
admission of such evidence.'" Ray v.
Richards, No. M2000-01808-COA-R3-CV, 2001 WL 799756, at
*4 (Tenn. Ct. App. July 17, 2001) (quoting Spadafina v.
State, 77 S.W.3d 198, 213 (Tenn. Crim. App. 2000)
(quoting Thomas v. State, 113 S.W. 1041, 1042
(1908); see also Garrison v. State, 40 S.W.2d 1009,
1013 (1931))). Consequently, because Father introduced the
issue, he cannot oppose cross-examination on same.
we conclude that the trial court erred in preventing
Mother's counsel from cross-examining Father concerning
his Kansas DUIs, under Tennessee Rule of Appellate Procedure
36(b), "[a] final judgment from which relief is
available and otherwise appropriate shall not be set aside
unless, considering the whole record, error involving a
substantial right more probably than not affected the
judgment or would result in prejudice to the judicial
process." Tenn. R. App. P. 36(b). Although, for the
reasons discussed above, the trial court should have
overruled Father's objection, any error was harmless
because the fact of Father's DUIs was already in the
record based on his answers during direct examination.
Therefore, we cannot conclude that the trial court's
error in denying Mother an opportunity to question Father
further concerning his Kansas DUIs more probably than not
affected the judgment or resulted in prejudice to the
judicial process. As such, this error does not require
Permanent Parenting Plan
also argues that the trial court erred when it: (1)
designated Father as the Child's primary residential
parent; (2) awarded Father sole major decision-making
authority; and (3) dramatically reduced her parenting time
with the Child. Before addressing these issues, we first
address Mother's contention that the trial court erred in
finding her testimony and her witness's testimony less
credible than Father's testimony and that of his
witnesses. Specifically, Mother alleges that the trial court
made several adverse credibility findings against her without
specifying its reasoning. In Wells v. Tennessee Board of
Regents, 9 S.W.3d 779 (Tenn. 1999), the Tennessee
Supreme Court explained that
trial courts are able to observe witnesses as they testify
and to assess their demeanor, which best situates trial
judges to evaluate witness credibility. See State v.
Pruett, 788 S.W.2d 559, 561 (Tenn. 1990); Bowman v.
Bowman, 836 S.W.2d 563, 566 (Tenn. Ct. App. 1991). Thus,
trial courts are in the most favorable position to resolve
factual disputes hinging on credibility determinations.
See Tenn-Tex Properties v. Brownell-Electro, Inc.,
778 S.W.2d 423, 425-26 (Tenn. 1989); Mitchell v.
Archibald, 971 S.W.2d 25, 29 (Tenn. Ct. App. 1998).
Accordingly, appellate courts will not re-evaluate a trial
judge's assessment of witness credibility absent clear
and convincing evidence to the contrary. See Humphrey v.
David Witherspoon, Inc., 734 S.W.2d 315, 315-16 (Tenn.
1987); Bingham v. Dyersburg Fabrics Co., Inc., 567
S.W.2d 169, 170 (Tenn. 1978).
Wells, 9 S.W.3d at 783. The trial court found
"that  Father and his witnesses [had] greater
credibility than that of  Mother or her witnesses."
The trial court did not expand on its reason for the
credibility finding. Certainly, the better practice would
have been for the trial court to explain the reasons for its
credibility finding; however, we acknowledge that such
findings often rest on obscure considerations. As such, we
usually defer to the trial court concerning its findings on
credibility. Nonetheless, even if we assume,
arguendo, that Mother, Father and their respective
witnesses were equally credible, for the reasons discussed
below, the evidence does not weigh against the trial
court's designation of Father as the Child's primary
the trial court's fashioning of a custody arrangement for
the parties' child, Tennessee Code Annotated section
36-6-106(a) provides, to-wit:
[i]n a suit for . . . divorce . . . or in any other
proceeding requiring the court to make a custody
determination regarding a minor child, the determination
shall be made on the basis of the best interest of the child.
In taking into account the child's best interest, the
court shall order a custody arrangement that permits both
parents to enjoy the maximum participation possible in the
life of the child consistent with the factors set out in this