Paul Holmes v. Christy Holmes ( 2001 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Submitted On Brief March 21, 2001 Session
PAUL RANDALL HOLMES v. CHRISTY LYNN HOLMES
Direct Appeal from the Chancery Court for Chester County
No. 9447 Joe C. Morris, Chancellor
No. W2000-01759-COA-R3-CV - Filed June 12, 2001
This is an appeal from a final decree of absolute divorce in which custody of the parties’ minor son
was given to the father for the school year and to the mother during the summer months when regular
school is not in session. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; and
Remanded
DAVID R. FARMER , J., delivered the opinion of the court, in which ALAN E. HIGHERS and HOLLY K.
LILLARD, J.J., joined.
Jesse H. Ford, III, Jackson, Tennessee, for the appellant, Christy Lynn Holmes.
James F. Butler and Lisa A. Houston, Jackson, Tennessee, for the appellee, Paul Randall Holmes.
MEMORANDUM OPINION1
The parties, Paul Randall Holmes (Mr. Holmes) and Christy Lynn Holmes (Ms. Holmes),
were married in November of 1991. They have one child, Dylan Colby Holmes (Colby), who was
born in October of 1992. On April 27, 1999, Mr. Holmes filed for divorce and obtained a temporary
restraining order and injunction which restrained and enjoined Ms. Holmes from exposing Colby to
people using tobacco products or consuming alcohol; to any relationship with any male person not
related to Ms. Holmes by blood or marriage; and from removing any furniture or household goods
from the residence. In June of 1999, Ms. Holmes counterclaimed for divorce.
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Rule 10 (Court of Ap peals). - (b) Memorandum O pinion. The Court, with the concurrence of all judges
participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a
formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated
“MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in a subsequent
unrelated case.
In August of 1999, the court entered a consent order wherein the parties agreed that neither
party would expose Colby to people using tobacco products or consuming alcohol nor to any
relationship with any person not related by blood or marriage. Further, the parties agreed to joint
custody, with Ms. Holmes being the primary custodian and Mr. Holmes being allowed reasonable
and liberal visitation. Less than two weeks later, Mr. Holmes filed a petition for contempt, alleging
that Ms. Holmes violated the visitation provisions of the consent order. The court, in turn, appointed
a guardian ad litem, Mr. Jack Manhein, Jr. (Mr. Manhein), to represent and protect Colby’s interests.
Subsequently, Mr. Holmes filed a petition for temporary custody and for contempt against Ms.
Holmes for violating the temporary restraining order and injunction and the visitation provisions of
the consent order. The court denied Mr. Holmes’ petition, but held the matter in abeyance until trial.
After a trial on the matter, the court declared the parties divorced and designated Mr. Holmes
as the primary custodian of Colby during the school year and Ms. Holmes as the primary custodian
during the summer months when regular school is not in session. Ms. Holmes appealed, alleging
error with the trial court’s award of custody to Mr. Holmes.
Because this matter was tried before the court sitting without a jury, our review of the trial
court’s findings of fact is de novo with a presumption of correctness, unless the preponderance of
the evidence is otherwise. See Tenn. R. App. P. 13(d). As the issues regard questions of law, our
review is de novo with no presumption of correctness. See Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997); Tenn. R. App. P. 13(d). Our de novo review is tempered by the fact that the trial court
is in the best position to assess the credibility of the witnesses and such determinations are afforded
great weight on appeal. See Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn. Ct. App.
1995). On issues regarding the credibility of witnesses, the trial court will not be reversed unless
there is clear and convincing evidence to the contrary. See Tennessee Valley Kaolin Corp. v. Perry,
526 S.W.2d 488, 490 (Tenn. Ct. App. 1974).
The trial court has much discretion in its custody determinations because the court saw the
witnesses’ demeanor and heard their testimony. See D v. K., 917 S.W.2d 682, 685 (Tenn. Ct. App.
1995); Mimms v. Mimms, 780 S.W.2d 739, 745 (Tenn. Ct. App. 1989); Bah v. Bah, 668 S.W.2d
663, 665 (Tenn. Ct. App. 1983). The court’s main concern is the best interest of the child. See Bah,
668 S.W.2d at 665. Determining which custody arrangement is in the best interest of the child
requires the court to consider many factors. Among those factors are
the age, habits, mental and emotional make-up of the child and those parties competing for
custody; the education and experience of those seeking to raise the child; their character and
propensities as evidenced by their past conduct; the financial and physical circumstances
available in the home of each party seeking custody and the special requirements of the child;
the availability and extent of third-party support; the associations and influences to which the
child is most likely to be exposed in the alternative afforded, both positive and negative; and
where is the greater likelihood of an environment for the child of love, warmth, stability,
support, consistency, care and concern, and physical and spiritual nurture.
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Id. at 666; see also Tenn. Code Ann. § 36-6-106 (Supp. 2000).
In the instant matter, the court appointed a guardian ad litem, Mr. Manhein, to represent the
interests of the parties’ minor child, Colby. Mr. Manhein’s five page report was introduced into
evidence at the trial of this matter. In his report, Mr. Manhein stated that he spent many hours
evaluating information conveyed to him regarding the issues of custody and visitation. Based upon
this information, Mr. Manhein determined that, although joint custody is generally not in the best
interest of the child, it was in Colby’s best interest to be placed with Mr. Holmes during the school
year and with Ms. Holmes during the summer months when Colby is not enrolled in school. After
hearing all the evidence, the trial court awarded joint custody.
After a thorough review of the record, we cannot say that the evidence preponderates against
the trial court’s findings. Accordingly, we affirm the trial court’s award of joint custody of Colby
to Mr. Holmes during the school year and to Ms. Holmes during the summer when regular school
is not in session. The costs of this appeal are taxed to the Appellant, Christy Lynn Holmes, and her
surety, for which execution may issue if necessary.
___________________________________
DAVID R. FARMER, JUDGE
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