Bruce Gillam v. Destiny Ballew ( 2020 )

05/21/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
January 22, 2020 Session
BRUCE GILLAM v. DESTINY BALLEW
Appeal from the Circuit Court for Anderson County
No. B6LA0172 M. Nichole Cantrell, Judge1
No. E2018-01782-COA-R3-CV
This appeal concerns the trial court’s designation of the father as the minor children’s
primary residential parent after establishing his paternity. During trial, the court granted
the father’s motion in limine to exclude testimony from the mother’s expert witness. The
mother appeals the trial court’s evidentiary ruling and the designation of primary
residential parent. We affirm the trial court’s decision.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which D. MICHAEL
SWINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.
Shelley S. Breeding, Nancyjane B. Sharp, and Madeline S. Copes, Knoxville, Tennessee,
for the appellant, Destiny Ballew.
Lauren R. Biloski and Channing R. Miller, Clinton, Tennessee, for the appellee, Bruce
Gillam.
OPINION
I. BACKGROUND
The Children, Jacob (“Son”) and Bailey (“Daughter”) were born out-of-wedlock
to Appellant Destiny Ballew (“Mother”) and Appellee Bruce Gillam (“Father”) in 2003
and 2008, respectively. The parties met in Illinois and began dating in 2001. They
briefly lived in Father’s home state of New York, and again in Illinois where Son was
born. After Son’s birth, and for the majority of the time that they were an unmarried
1
Sitting by interchange.
couple, Mother, Father, and the Children resided in Tennessee. Mother and Father broke
up in March 2010. Father lost his job that same year. Father voluntarily left the home
and moved to New York to live with his mother, leaving Mother as the Children’s
primary caretaker.
In April 2010, with Father’s consent, Mother transferred custody to the maternal
grandmother for a short period while she completed training for the Navy Reserves.
Custody was returned to Mother once she returned from training. From 2010 to 2015,
Father paid no child support. Before 2015, there was no child support order in place, nor
had Mother requested child support payments. Nevertheless, Father knew that he was
responsible for supporting the Children. In April 2015, Mother initiated child support
judicial proceedings, but stopped them because Father could not afford to pay the
projected amount of child support. Mother did not want Father to go to jail for failure to
pay. Upon their agreement, Father paid Mother one hundred dollars weekly child support
until he was granted custody of the Children in August 2016. Father visited the Children
beginning in the summer of 2011 when he had the Children for approximately ten weeks
of the year. In the summer of 2014, Mother gave him two hundred dollars so he would
have the funds to visit the Children.
The record contains the maternal grandfather’s (“Grandfather”) testimony.
Grandfather is an admitted alcoholic who has a cocaine-related drug conviction and a
conviction for a sexual offense against a minor, for which he served jail time.
Grandfather is listed on the Tennessee Sexual Offender Registry and is not to have
contact with minor children. He has been arrested for “staying where [he] wasn’t
supposed to stay for more than 48 hours,” a Registry violation. Years ago, Grandfather
placed his penis on a twelve-year-old girl’s face and consequently pled guilty to
attempted sexual assault of a minor.
One to two times per month, Grandfather would visit Mother’s home, drink to the
point of being too intoxicated to drive, and spend the night while the Children and their
minor stepsister were in the home. In January 2016, Daughter disclosed an instance of
sexual abuse recently perpetrated by her Grandfather. In January 2016, Grandfather was
allowed to sleep on the couch in Mother’s home with Daughter. The parties agree that
Grandfather sexually assaulted their Daughter at that time. Daughter initially told Mother
that Grandfather inappropriately rubbed her over her clothing. Mother did not report this
act to the police, the Tennessee Department of Children’s Services (“DCS”), Father, or
her husband, Christopher Ballew, whose minor daughter also resided in the home.
Mother refused further contact with Grandfather. Mother’s reasoning for not
immediately reporting Grandfather’s abuse of her Daughter was that Daughter, then
seven years old, did not want to tell the police. Mother believed she acted appropriately
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under the circumstances because she removed Grandfather from her home and did not
allow him to have any further contact with the Children.
In March 2016, Daughter disclosed to Mother a new version of the events between
her and her Grandfather, stating that Grandfather had pulled her pants partially down.
Mother then contacted an acquaintance who was a former DCS employee. Based on the
acquaintance’s advice, Mother took Daughter to DCS on March 7, 2016. On March 9,
2016, Mother called DCS and reported Daughter’s sexual abuse allegations against
Grandfather. In early March 2016, Daughter disclosed Grandfather’s sexual abuse of her
to her Father. Father immediately phoned Mother to discuss, notified the police, and
contacted DCS. Mother confirmed the allegations to Father. Around this time, Mother’s
husband was notified of the abuse. He went to Grandfather’s home armed with a gun, but
Grandfather was not home. DCS later substantiated Daughter’s sexual abuse allegations
and conducted a home visit. Daughter was permitted to stay in the home because Mother
had excised Grandfather from their life. According to Mother, Father then began
repeatedly calling Daughter to question her about the abuse, forcing her to relive the
events. Mother refused any further direct telephone contact between them by blocking
Father’s number from the Children’s phones.
This litigation commenced on March 18, 2016, upon Father’s filing a petition to
establish paternity for custody and a proposed temporary parenting plan in the Juvenile
Court for Anderson County, Tennessee. The same day, the juvenile court ordered that
“[Mother] and her agents shall ensure the minor children have no contact either in person,
through third parties, or via telephone or social media, with [Grandfather].” On March
31, 2016, Mother answered the petition and filed a counter-complaint to establish child
support. On April 4, 2016, DCS filed a petition for a restraining order against
Grandfather on behalf of the Children. In its petition, DCS stated that Child Protective
Services became involved in this case on or about March 7, 2016, due to Daughter’s
allegations of sexual abuse. DCS further alleged that Daughter “made consistent
disclosures” of Grandfather’s sexual abuse of her that had “happened about 5 or 6 times,
usually at night when her grandfather spent the night at her home.” The restraining order
was confirmed.
On May 10, 2016, Father filed a proposed permanent parenting plan order
requesting custody of the Children. Father moved for an immediate entry of order for
summer vacation on May 23, 2016. In his motion, Father alleged that despite the parties’
earlier agreement that the Children would spend the summer with him, after he filed the
petition to establish paternity for custody, Mother refused to discuss or arrange summer
visitation until the parties attended mediation. A mediation date had been scheduled, but
it was cancelled and not reset after mother obtained new counsel. This issue was
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resolved through an agreed temporary order wherein Father was granted co-parenting
time with the Children from May 28, 2016, to July 16, 2016.
By order entered June 28, 2016, the juvenile court found that Grandfather sexually
abused Daughter and that Daughter was the victim of severe child abuse as that term is
defined in Tennessee Code Annotated section 37-1-102. The juvenile court also ruled
that the no contact order between Grandfather and the Children would extend until they
reached age 18.
The case proceeded to a hearing before the juvenile court in August 2016. On
September 6, 2016, the juvenile court entered its order awarding custody of the Children
to Father, named him primary residential parent, and entered a permanent parenting plan.
Mother appealed to the Circuit Court for Anderson County (“the trial court”).2
Father resides in New York with his wife and her three sons. During the pendency
of the appeal to the Circuit Court, Daughter disclosed an instance of inappropriate
touching by her stepbrother while in Father’s custody in New York. Father immediately
reported the allegation to the appropriate authorities and to Mother, but did not remove
the stepbrother from the home. Father also placed an alarm on Daughter’s bedroom door,
set a rule that no other children in the home were allowed in Daughter’s bedroom, nor
was she allowed in their bedrooms, and ensured that the Children were not left
unsupervised. Following an investigation, the allegation against the stepbrother was
deemed unfounded. The door alarm is no longer in use.
On January 17, 2017, Mother filed a motion for psychological evaluation and for
forensic medical evaluation, pursuant to Tennessee Rule of Civil Procedure 35.01.
Following a hearing, the trial court found that “the mental and physical condition of
[Daughter] is in controversy,” and that “[Son’s] mental state, too, is called into question
pursuant to Rule 35.” For these reasons and for good cause shown, the trial court ordered
the Children to “be evaluated by a psychologist chosen by the Mother and that any other
individuals in the Mother’s household or the Father’s household shall be evaluated as
requested by the psychologist” at Mother’s expense. On October 2, 2017, Father filed a
motion in limine to bar the psychologist, Dr. Bashkoff, from testifying or referring to the
evaluation she performed. Father argued that Dr. Bashkoff had conducted a forensic
custodial evaluation instead of a psychological evaluation, as ordered, and that he did not
consent to a forensic custodial evaluation. Following a hearing, and by order entered
November 20, 2017, the trial court found that it had previously ordered Dr. Bashkoff “to
conduct a psychological evaluation pursuant to Rule 35 of the Tennessee Rules of Civil
Procedure of the parties’ minor children and any other members of either family should
2
The parties signed an agreed order that Chancellor Cantrell would sit by interchange for the Judge of the
Circuit Court for Anderson County.
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she request.” The court further found “[t]hat a forensic custodial evaluation was not
ordered.” The court ordered that if Dr. Bashkoff had not completed a psychological
evaluation of the Children, then she should do so, and further ordered “[t]hat if the
testimony during the trial in this matter demonstrates that [Father] and members of his
household consented to the forensic custodial evaluation, then the results of the
evaluation could be admissible despite not being Ordered.”
The case proceeded to a seven-day bench trial held on December 6, 7, and 8, 2017,
and on August 13, 14, 15, and 16, 2018.3 On the last day of trial, Father renewed his
October 2, 2017, motion in limine. Following the parties’ lengthy argument on the
record, the trial court granted Father’s motion, so Dr. Bashkoff was not permitted to
testify. The trial court granted Mother’s request to present Dr. Bashkoff’s testimony as
an offer of proof, outside of the trial judge’s presence. By final order entered September
4, 2018, the trial court designated Father as the Children’s primary residential parent and
adopted Father’s proposed permanent parenting plan. The court further ordered that
Mother would be responsible for paying child support and that the Juvenile Court’s order
preventing Grandfather from contacting the Children would remain in effect.
II. ISSUES
We consolidate and restate the issues on appeal as follows:
A. Whether the trial court abused its discretion by excluding the
testimony of Mother’s expert witness, Dr. Bashkoff.
B. Whether the trial court erred by designating Father as the primary
residential parent.
III. STANDARD OF REVIEW
We review a trial court’s factual findings de novo upon the record, with a
presumption of correctness, unless the evidence preponderates otherwise. Tenn. R. App.
P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). We review a trial
court’s conclusions of law de novo with no presumption of correctness. Id. A trial
court’s decision regarding a parenting arrangement is reviewed for abuse of discretion.
In re Noah J., No. W2014-01778-COA-R3-JV, 2015 WL 1332665, at *3 (Tenn. Ct. App.
Mar. 23, 2015). Our Supreme Court has explained:
3
The testimony will be further outlined below as relevant to the issues on appeal.
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Because decisions regarding parenting arrangements are factually driven
and require careful consideration of numerous factors, Holloway v. Bradley,
190 Tenn. 565, 230 S.W.2d 1003, 1006 (1950); Brumit v. Brumit, 948
S.W.2d 739, 740 (Tenn. Ct. App. 1997), trial judges, who have the
opportunity to observe the witnesses and make credibility determinations,
are better positioned to evaluate the facts than appellate judges. Massey-
Holt v. Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007). Thus,
determining the details of parenting plans is ‘peculiarly within the broad
discretion of the trial judge.’ Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn.
1988) (quoting Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn. Ct. App.
1973)). ‘It is not the function of appellate courts to tweak a [residential
parenting schedule] in the hopes of achieving a more reasonable result than
the trial court.’ Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001). A
trial court’s decision regarding the details of a residential parenting
schedule should not be reversed absent an abuse of discretion. Id. ‘An
abuse of discretion occurs when the trial court ... appl[ies] an incorrect legal
standard, reaches an illogical result, resolves the case on a clearly erroneous
assessment of the evidence, or relies on reasoning that causes an injustice.’
Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011). A trial court
abuses its discretion in establishing a residential parenting schedule ‘only
when the trial court’s ruling 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, 42 S.W.3d at 88.
Armbrister, 414 S.W.3d at 693. The abuse of discretion standard “does not permit an
appellate court to substitute its judgment for that of the trial court, but ‘reflects an
awareness that the decision being reviewed involved a choice among several acceptable
alternatives.’” Gonsewski, 350 S.W.3d at 105 (citations omitted).
IV. DISCUSSION
A.
Evidentiary rulings fall “within the trial court’s discretion.” White v. Vanderbilt
Univ., 21 S.W.3d 215, 222 (Tenn. Ct. App. 1999). As discussed in White:
The discretionary nature of the decision does not shield it completely from
appellate review but does result in subjecting it to less rigorous appellate
scrutiny. Because, by their very nature, discretionary decisions involve a
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choice among acceptable alternatives, reviewing courts will not second-
guess a trial court’s exercise of its discretion simply because the trial court
chose an alternative that the appellate courts would not have chosen.
Id. at 222-23 (citations omitted). We review the trial court’s discretionary decision to
determine: “(1) whether the factual basis for the decision is supported by the evidence,
(2) whether the trial court identified and applied the applicable legal principles, and (3)
whether the trial court’s decision is within the range of acceptable alternatives.” Id. at
223. “Appellate courts should permit a discretionary decision to stand if reasonable
judicial minds can differ concerning its soundness.” Id.
Mother argues that the court abused its discretion by barring Dr. Bashkoff from
testifying because Father “signed the consent for [the] Doctor’s evaluation which was
conducted solely to provide expert testimony.” Father argues that Dr. Bashkoff’s
evaluation differed from what the trial court previously ordered and was properly
excluded on that basis.4 The trial court considered these arguments:
Mother’s Trial Counsel: Before [Dr. Bashkoff’s] report was done, before
anything began, [Father] signed [the consent form]. And it says, “I have
been asked to conduct a psychological assessment of you in connection
with your legal case. This form was written to give you information about
this assessment. This release is for the sole purpose of facilitating a
forensic psychological evaluation.” Forensic evaluation is just that, a
custody evaluation. It’s the same thing. You go ask any—
Trial Court: Let me interrupt you. No, they’re not.
Mother’s Trial Counsel: Yes, they are.
Trial Court: Absolutely not. A forensic psychological evaluation of the
children is not the same thing as a forensic custody evaluation where we
have an expert come in and give an expert opinion regarding who is the
best custodian for the children. They are not the same thing. A
psychological evaluation, or a psychological assessment of the children,
would have an expert come in and talk about the psychological well-being
of the children and what their current conditions are. It would not contain
in it any expert opinions regarding custody.
4
By order entered November 20, 2017, the trial court found that it had previously ordered Dr. Bashkoff
“to conduct a psychological evaluation pursuant to Rule 35 of the Tennessee Rules of Civil Procedure of
the parties’ minor children and any other members of either family should she request.” The court further
found “[t]hat a forensic custodial evaluation was not ordered.”
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Mother further argues that the trial court erred by refusing to exclude only the portions of
Dr. Bashkoff’s testimony and report pertaining to custodial opinion.5 Mother contends
that the complete bar of Dr. Bashkoff’s testimony “was fatal to her case.”
Based on our reading of Dr. Bashkoff’s testimony in the offer proof in conjunction
with the entire record and the trial court’s final order, we cannot agree that its exclusion
was “fatal” or that the testimony would have been as “pivotal” as Mother contends. More
importantly, Mother has not shown that the trial court abused its discretion in making the
evidentiary ruling. The record contains the trial court’s factual basis and the applicable
legal principle. Namely, the trial court reiterated to the parties through its November 20,
2017, order that a forensic custodial evaluation was neither contemplated nor authorized,
and reasoned during argument on the motion in limine that “[n]othing in Rule 35
contemplates that the examination that is going to be done is a custody examination.”
Although Dr. Bashkoff’s testimony could have been limited, the trial court’s ruling on
Father’s motion in limine fell within the range of acceptable alternative rulings.
Therefore, we must affirm.
B.
Pursuant to Tennessee Code Annotated section 36-6-404(a), any final decree in an
action for separate maintenance involving a minor child shall incorporate a permanent
parenting plan, defined in Tennessee Code Annotated section 36-6-402(3) 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, as well as an award of
child support[.]”. The trial court is charged with determining a residential schedule,
which defines one party as the primary residential parent and designates in which
parent’s home the child will reside on given days during the year. Tenn. Code Ann. § 36-
6-402(5). Additionally, Tennessee Code Annotated section 36-6-401(a) provides, in
pertinent part:
The general assembly recognizes the fundamental importance of the parent-
child relationship to the welfare of the child, and the relationship between
the child and each parent should be fostered unless inconsistent with the
child’s best interests. The best interests of the child are served by a
parenting arrangement that best maintains a child’s emotional growth,
health and stability, and physical care.
5
In the offer of proof, Dr. Bashkoff opined that she saw “no reason” why the Children should not reside
with Mother, and that Mother was best suited to care for the Children because Father “doesn’t understand
the spirit of coparenting.”
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When developing a parenting plan, the court should consider the factors set forth
in Tennessee Code Annotated section 36-6-106(a). These factors 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 [] past and potential for future performance of parenting
responsibilities, including the willingness and ability of each of the parents
[] 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 [] 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 [] to honor and facilitate court
ordered parenting arrangements and rights, and the court shall further
consider any history of either parent [] denying parenting time to either
parent in violation of a court order;
(3) Refusal to attend a court ordered parent education seminar may be
considered by the court as a lack of good faith effort in these proceedings;
(4) The disposition of each parent to provide the child with food, clothing,
medical care, education and other necessary care;
(5) The degree to which a parent has been the primary caregiver, defined as
the parent who has taken the greater responsibility for performing parental
responsibilities;
(6) The love, affection, and emotional ties existing between each parent and
the child;
(7) The emotional needs and developmental level of the child;
(8) The moral, physical, mental and emotional fitness of each parent as it
relates to their ability to parent the child. . . .;
(9) The child’s interaction and interrelationships with siblings, other
relatives and step-relatives, and mentors, as well as the child’s involvement
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with the child’s physical surroundings, school, or other significant
activities;
(10) The importance of continuity in the child’s life and the length of time
the child has lived in a stable, satisfactory environment;
(11) Evidence of physical or emotional abuse to the child, to the other
parent or to any other person. The court shall, where appropriate, refer any
issues of abuse to juvenile court for further proceedings;
(12) The character and behavior of any other person who resides in or
frequents the home of a parent and such person’s interactions with the
child;
(13) The reasonable preference of the child if twelve (12) years of age or
older. . . .;
(14) Each parent’s employment schedule, and the court may make
accommodations consistent with those schedules; and
(15) Any other factors deemed relevant by the court.
Tenn. Code Ann. § 36-6-106(a)(1)-(15). Although the court is obligated to consider the
applicable statutory factors, “the statute does not require a trial court, when issuing a
memorandum opinion or final judgment, to list every applicable factor along with its
conclusion as to how that particular factor impacted the overall custody determination.”
Burnette v. Burnette, No. E2002-01614-COA-R3-CV, 2003 WL 21782290, at *6 (Tenn.
Ct. App. July 23, 2003).
Here, after hearing seven days of testimony, the trial court reviewed the relevant
factors in detail and found that they weighed in favor of naming Father primary
residential parent. In making its decision, the trial court considered Mother’s testimony
that she did not report Daughter’s first disclosure of sexual abuse perpetrated in Mother’s
home by Grandfather because Daughter, then seven years old, did not want to tell the
police. The trial court found this reasoning “unacceptable and an example of [Mother]
failing to act in the best interest of her minor child which this court considers a factor to
be taken into consideration under T.C.A. § 36-6-106(a)(15).” On the other hand, the trial
court found that when Daughter disclosed inappropriate touching by her stepbrother,
Father “acted immediately, appropriately, and in [Daughter’s] best interest even if, as he
testified, he may not have believed the allegation when [Daughter] disclosed it to him.”
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The trial court found it relevant that in the discussion between Mother and Father
regarding what actions Mother had taken upon hearing their Daughter’s allegations of
sexual abuse, Mother lied to Father about the steps she had actually taken. The trial court
cited Mother’s testimony that she told Father she had a restraining order in place, when
she did not. She indicated to Father that Grandfather was going to be arrested when there
was no basis for that statement because Mother had yet to report the abuse to the police
or to DCS. Tenn. Code Ann. § 36-6-106(a)(15).
Under Tennessee Code Annotated section 36-6-106(a)(1), the trial court
appropriately considered that, until August 2016, Mother had performed the majority of
parenting responsibilities relating to the daily needs of the children. However, several
other factors weighed in the court’s decision. For example, the trial court considered the
text messages between the parties which indicated Mother “was livid with [Father] for
notifying the police” about Grandfather’s sexual abuse of Daughter, and considered
Mother’s actions following Father’s report and his filing of the original petition:
Also, under the second factor of T.C.A. § 36-6-106 is the willingness and
ability of each of the parents to facilitate and encourage a close and
continuing parent-child relationship with the other parent. Here, the court
may consider any history of either parent denying parenting time to either
parent in violation of a court order. [Mother] has shown an unwillingness
or inability to encourage a continuing relationship between the children and
the [Father]. . . . Taking retaliatory actions such as blocking [Father’s]
access to the children via telephone and social media is a factor to be
considered. In addition, when making the children available for phone
contact with [Father], having the set time at 6:00 a.m. appears to this court
as another effort to interfere with [Father’s] contact with the children.
Again, after the initial pleadings were filed by [Father], [Mother] attempted
to deny [Father] his summer visitation with the minor children.
[Mother] argued that [Father] had acted in a similar manner by denying
[her] request for Fall Break, (which the children do not have in the New
York school system) to be taken during a February winter break. This was
not pursuant to the language of the Parenting Plan and the matter was ruled
on by this court on the 6th day of February, 2017. [Father] ensures that the
children have telephone contact with [Mother] and encourages the children
to call her.
Tenn. Code Ann. § 36-6-106(a)(2).
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Additionally, the trial court considered Father’s demonstrated “potential for future
performance of parenting responsibilities” based on evidence that “[Daughter] is
receiving the necessary counseling while in his care,” his “active role in the children’s
schooling,” and the Children’s improvement in school after an initial struggle. Tenn.
Code Ann. § 36-6-106(a)(2). The trial court specifically rejected the notion “that the
children are doing substantially worse in school in New York than they did under
[Mother’s] care in Tennessee,” and found that a change in schooling “does not in itself
constitute a reason to return the children to [Mother’s] care.”
The third factor did not apply in this case. As to the fourth factor, the trial court
found that:
Each parent has shown the disposition to provide the child with food,
clothing, and education; however [Mother] did not seek out any medical
care immediately after the disclosure of sexual abuse to ensure that the
abuse did not include penetration. There have been ongoing issues between
these parents regarding necessary counseling and dental care. [Mother] has
not given her permission for the Children to receive recommended dental
care, such that [Father] has not been able to act. In addition, [Mother]
demanded a change in the counselor treating [Daughter] in New York due
to some issue [Mother] had with the counselor, not whether it was in
[Daughter’s] best interest to continue with this counselor whom she was
established and comfortable with.
Tenn. Code Ann. § 36-6-106(a)(4). In weighing the fifth factor, the trial court
acknowledged “there is no question that for the majority of the time since the parties
separated in 2010, [Mother] has been the primary caretaker of the children.” Tenn. Code
Ann. § 36-6-106(a)(5). The trial court found that “both parties have love, affection, and
emotional ties with the children.” Tenn. Code Ann. § 36-6-106(a)(6). As to the seventh
factor, the emotional needs and developmental level of the child, the trial court noted its
“concerns relating to the stance [Mother] took after [Daughter] made the disclosure of
sexual abuse,” including Mother’s initial non-reporting, the fact that Mother waited some
time before considering counseling for Daughter, and Mother’s statement to Father that
he needed to stop Daughter from discussing the abuse with him when she brought it up in
conversation. The trial court found that Father “does seem to have the emotional needs
of [Daughter] in mind, ensuring that [she] is receiving counseling while in his care.”
Tenn. Code Ann. § 36-6-106(a)(7). Under the eighth factor, the court found that the
“moral, physical, mental and emotional fitness of either parent is not an issue in this
case.” Tenn. Code Ann. § 36-6-106(a)(8).
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The trial court recognized that the Children have relationships with their
stepsiblings and stepparents in New York and in Tennessee, but also considered that a
member of Mother’s family, who was staying in her home with permission, sexually
abused Daughter. Tenn. Code Ann. § 36-6-106(a)(9). As the trial court noted, Mother
and her husband, Christopher Ballew, both testified that they believed Grandfather’s
story that his criminal convictions were due to an act of revenge by an ex-girlfriend, and
both testified many times that there were no “red flags” to alert them that having
Grandfather in their home posed a danger. In rejecting this proposition, the court posited,
“[w]hat else could have put [Mother] on notice other than her knowledge of
[Grandfather’s] conviction, her knowledge of his listing on the sex offender registry [],
her knowledge that [he] was not to be around children, and her knowledge that he was
heavily intoxicated while staying at her home?” The trial court “heavily weighed” these
facts “under factor[s] nine, eleven and twelve.” Tenn. Code Ann. § 36-6-106(a)(9), (11),
(12).
In considering the importance of continuity in the Children’s lives, the trial court
balanced the fact that, at the time, the Children had lived with their Mother “for the
majority of their lives,” with Son’s testimony that he made friends in New York, had a
good relationship with his family in New York, and was happy in the residence with
Father. Tenn. Code Ann. § 36-6-106(a)(10). Son did not state a preference in his
testimony, and Daughter did not testify. Tenn. Code Ann. § 36-6-106(a)(13). The
fourteenth factor did not weigh in the court’s analysis, although the court found that
“[b]oth parents are employed and both parents’ schedules are suitable to provide for the
children.” Tenn. Code Ann. § 36-6-106(a)(14). Taking all the above factors into
consideration, the trial court concluded “that it is in the best interest of the minor children
to remain in the care and custody of [Father], and to adopt [Father’s] proposed parenting
plan setting forth co-parenting time with [Mother].”
On appeal, Mother argues that the trial court’s designation of Father as the primary
residential parent did not serve the Children’s best interests. She asserts that “when
accurately and wholly assessed,” the majority of the statutory factors weigh in favor of
her comparative fitness, not Father’s. She argues that the court erroneously focused on
her failure to immediately report the sexual abuse and her refusal to permit direct
telephone contact between Father and the Children. She claims that the court overlooked
the fact that Father did not remove stepbrother from his home in light of Daughter’s
allegations, and that she only limited contact for Daughter’s emotional wellbeing.
Mother repeatedly notes that she provided the majority of care, support, and affection for
the Children from 2010 to August of 2016 because Father lived elsewhere, but argues
that the trial court “fail[ed] to emphasize” and “failed to give . . . any credit” for this.
Mother apparently misreads the trial court’s order wherein the court considered
throughout that Mother was the Children’s primary caretaker for several years.
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Overall, Mother appears to ask us to reevaluate the facts heard by the trial court
and simply reach a different conclusion. Appellate courts are hesitant to second-guess a
trial court’s custody and visitation decision because these decisions “‘often hinge on
subtle factors, including the parents’ demeanor and credibility.’” Lower v. Lower, No.
M2013-02593-COA-R3-CV, 2014 WL 5089346, at *4 (Tenn. Ct. App. Oct. 8, 2014)
(quoting Hyde v. Bradley, No. M2009-02117-COA-R3-JV, 2010 WL 4024905, at *3
(Tenn. Ct. App. Oct. 12, 2010)). After extensively reviewing the record, we agree with
the trial court’s findings. The evidence presented at trial and the entirety of the record
wholly support the findings. Mother has not demonstrated that the trial court abused its
discretion in conducting its best interest analysis, and we find that the evidence does not
preponderate against the trial court’s findings on any of the factors the court considered.
We hold that the trial court’s conclusion that it is in the Children’s best interests for
Father to be the primary residential parent is within “the spectrum of rulings that might
reasonably result from an application of the correct legal standards to the evidence found
in the record.” Eldridge, 42 S.W.3d at 88. Accordingly, we affirm the trial court’s
judgment.
V. CONCLUSION
We affirm the decision of the trial court. The case is remanded for such further
proceedings as may be necessary and consistent with this Opinion. Costs of the appeal
are taxed to the appellant, Destiny Ballew.
_________________________________
JOHN W. McCLARTY, JUDGE
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